National estimates of medical liability system costs—including settlements, legal and administrative costs and defensive medicine—range from $55.6 billion annually to $200 billion annually (NCSL, 2011). Medical malpractice reform, also known as tort reform, includes strategies to limit medical malpractice costs, deter medical errors, and ensure that patients who are injured by medical negligence are fairly compensated. Tort reform has the potential to reduce health care expenditures by reducing the number of malpractice claims, the average size of malpractice awards and tort liability system administrative costs. It also may lead to fewer instances of defensive medicine where physicians order tests and procedures not primarily to ensure the health of the patient but as a safeguard against possible medical malpractice liability (NCSL, 2011).
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The Affordable Care Act authorizes states to explore alternatives to current tort litigation to resolve malpractice claims. However, the final version of the ACA provided that, in order for states to receive funding, the alternative “projects” could not limit attorney’s fees, or impose a cap on damages (Roberti, 2012). While President Obama informed Americans that he was against caps on damages, Members of Congress argued that prohibiting them would eliminate any possible savings within the health care system (Roberti, 2012). Physicians are also concerned. The American Medical Association drafted model legislation to shield providers from newly created malpractice claims resulting from the ACA. It would prevent malpractice claimants from using federal or state practice guidelines, quality measures, reimbursement criteria and the like to establish or define the standard of care without expert testimony. In Congress, a version of this model, H.R. 1473, was introduced in the House of Representatives in 2012, and again in April of 2013 (Van Tassel, 2013).
National Conference of State Legislatures. (2014). Medical Malpractice Reform - Health Cost Containment. Retrieved from www.ncsl.org/research/health/medical-malpractice-reform- health-cost-brief.aspx.
Roberti, R. (2012). The disappearing provision: medical liability reform vanishes from the patient protection and affordable care act despite state court split. Legislation and Policy Brief. 4,(3), 145-172.
Van Tassel, K. (2013). Medical Malpractice, the Affordable Care Act and State Provider Shield Laws: More Myth than Necessity? http://blogs.law.harvard.edu/billofhealth/2013/05/14/medical-malpractice-the- affordable-care-act-and-state-provider-shield-laws-more-myth-than-necessity/.