New Directions in Medical Liability Reform

Traditional tort reform, aimed at liability cost control and revealed through research to be largely ineffective, has lost momentum. But new models of response to medical injuries which focus on improving delivery of safe and efficient patient care hold promise.

Reform of the medical liability system continues to be a priority, according to this report, but both the “locus and the focus” of efforts have changed since the malpractice crisis of the early 2000s. While old efforts aimed to reduce liability costs through changes to state tort laws, new efforts—driven by national health care reform and the belief that medical liability reform can “bend the health care cost curve”— focus on both liability cost control and patient safety improvements, and are being led by health care institutions, state agencies and insurers. The authors recap their findings from a recent review of literature on the eight most widely-adopted state tort reforms. They also describe new emerging approaches to reform.

Key Findings:

  • Although the study of tort reform has surged, research has focused heavily on reform’s impact on liability costs, as opposed to patient care. But even these limited metrics have not detected many improvements.
  • The most effective traditional measure has proven to be caps to noneconomic damages which reduce the size of indemnity payments; may “modestly constrain” the growth of insurance premiums; appear to reduce defensive medicine; and may modestly increase physician supply.
  • Recently-funded federal demonstration projects have broader goals, aiming to improve patient care and efficiency. Their promising approaches include: using variants of a “disclosure and offer” model to increase communication between caregivers and families; creating legal “safe harbors” for physicians who have followed care guidelines; and defining “avoidable classes of events” for which insurers are encouraged to offer compensation without suit or investigations of negligence.

The authors are hopeful new directions in liability reform that use private innovation and nontraditional public policy tactics will “foster,” rather than “obstruct,” safe and high quality health care.