 2003 AJN Table of Contents
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Washington Watch
American Journal of Nursing -
May, 2003 - Volume 103, Issue 5
Medical Malpractice Crisis
Pending legislation grapples with insurance reform.
Escalating medical malpractice liability rates have created a crisis that threatens access to adequate health care services in many states and increases costs in an already financially stressed health care system. The increasing costs of professional liability insurance have a negative impact on the entire health care delivery system, including RNs and their patients. The question is how or whether a federal law will solve the problem.
A number of factors contribute to the crisis, including, but not limited to, the health care liability system, inadequate attention paid to ways of preventing medical errors, short staffing in many health care facilities, and the need for reforms within the insurance industry. Although there is general agreement among the stakeholders that a crisis exists in several states, there is little agreement on the causes and even less agreement on possible solutions to the problem.
Physicians and insurance companies are on one side of the issue lobbying for caps on noneconomic damages. Pitted against them are trial lawyers who are advocating insurance reform. Consumer advocacy groups are also lobbying for legislation on medical errors, including disclosure rules and safety standards. They maintain that high malpractice premiums reflect weak insurance profits and investment decisions and not just frivolous malpractice suits.
Medical malpractice reform has previously been addressed at the federal level, without resolution. Largely, the response to insurance rate increases has been tort reform at the state level mandating caps on noneconomic awards or changes in legal proceedings, such as prelitigation hearings or time limits on filing suits.
Noneconomic damages are compensation for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, and loss of the enjoyment of life. These damages differ from economic damages, which are easily determined and are based on hospital and medical expenses, lost wages, and lost employment. Although the valuation of noneconomic damages is more subjective, they are nevertheless real losses that may result from malpractice.
This year, medical malpractice reform is being driven by physicians’ public protests over malpractice insurance rates, widespread media attention on the impact on providers and patients, and a presidential call to action. Congress has responded with federal legislation, the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2003.
The bill, sponsored by Representative James C. Greenwood (R-PA), places a $250,000 cap on pain and suffering and punitive damages, limits the liability for defendants, limits contingency fees, mandates periodic payments for awards greater than $50,000, and limits the filing time for claims. Despite strong criticism by Democrats that the legislation goes beyond the scope of medical malpractice by protecting drug and medical device companies, the bill passed in the House. It is expected to meet more opposition as it moves through the Senate.
As the cost of insurance trends upward, the cost of professional insurance for nurses is likely to increase as well, placing financial strain on nurses and making it more difficult to obtain affordable coverage. In addition, as limits are placed on malpractice awards, it is expected that trial lawyers will target a wider range of plaintiffs in medical malpractice cases, thereby possibly increasing RNs’ vulnerability to lawsuits.
Available resources are also caught in the fallout of this crisis as hospitals face sharply increasing premiums and as defensive medicine drains more dollars from already limited coffers. Some hospitals have responded to premium increases by cutting nursing and support staff to lower overall hospital costs.
Finally, advanced practice RNs are experiencing increased premiums, decreases in the number of companies offering malpractice insurance, and the threat of physicians’ unwillingness to enter collaborative arrangements with them.
“Medical malpractice and tort reform are complex issues that interlink with many factors, and looking at only one element limits solutions,” said ANA first vice-president Pat Yoder-Wise, EdD, RN, CNAA, FAAN. Yoder-Wise stated that the ANA is advocating solutions that address safety within the health care system and ensure patient access to health care providers.
Sheila Abood is associate director of the ANA's Department of Government Affairs, and Tara Tehan is a graduate student at Johns Hopkins University in Baltimore, MD.
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