Position Statement

Professional Liability: Federal Tort Reform

Professional liability matters are a major concern to orthopaedic surgeons and their patients. These concerns include the practice of defensive medicine, high rates of malpractice insurance premiums and the problem of access to medical care, created, in part, by the high costs of providing medical care.

The American Association of Orthopaedic Surgeons (AAOS) believes that some states have put into place tort reform systems that have helped resolve this problem and facilitate better patient care.

For example, California tort reform measures, such as the MICRA caps, have resulted in a stabilization of the medical malpractice situation. Some states have begun to address specific liability concerns, such as prohibiting contract provisions between health care plans and physicians which hold the doctor totally liable for the decision of a health care plan to deny care, and implementing due process hearings when care has been denied. Other states have no system that is of any benefit. In addition, there has been inconsistency in the manner in which state supreme courts have dealt with the various tort reform measures. Consequently, while the AAOS recognizes that some state reform has proven effective, federal legislation should be enacted to bring uniformity to this situation.

The AAOS believes that a uniform system to assure the equitable and efficient handling of medical malpractice disputes on the federal and state levels is the best solution. The AAOS also believes that these disputes should not be governed only by the laws of the state in which the alleged maloccurrence took place or where the individuals reside. Thus, the AAOS supports preemptive federal tort reform.

The AAOS is concerned about the inadequacies of the tort system in handling the medical malpractice problem. Some of these inadequacies include:

• The tort system is slow. In many states, injured patients may wait for years for resolution or compensation.
• The tort system provides for inconsistent awards. Some patients are over-compensated and some are under-compensated. Indeed, some deserving patients do not receive any award and some patients receive much more than appears equitable.
• The tort system is expensive. Most of the money goes to those other than the injured patient. Approximately 20 percent of the premium dollar collected goes to the insured claimant whereas the rest of the money goes for administrative and legal fees. Also, defensive medicine adds greatly to the cost of care, in general.
• The tort system is destructive to the doctor-patient relationship. Barriers are introduced that should not be present.
• The tort system discourages the reporting of medical errors, which if consistently reported, would lead to protocols and procedures that would improve patient care. There is no legal protection for those providers who report medical error – these reports can be used against them in a court of law.
• The tort system does little, if anything, to improve the quality of medical care.

The AAOS believes that the consideration and adoption, at the federal level, of some or all of the following tort reform measures will address the serious failing of the court-based tort system in most states, permitting orthopaedic surgeons to better provide high quality services at reasonable costs to their patients.

The AAOS encourages the federal government to enact tort reform legislation and to consider several tort reform options that have proven effective in some states. These include, but are not limited to:

1. A specific cap on non-economic damages;
2. Mandatory offset of collateral sources of payment;
3. Periodic payment of future damage awards in medical liability cases;
4. Limitation or prohibition of punitive damages;
5. Development of alternative dispute resolution methods;
6. Requirement for a certificate of merit indicating that a claim will be supported by an affidavit from an appropriate physician. This affidavit certifies that the claim has been reviewed and has merit;
7. Establishment of basic requirements to qualify an expert witness in medical malpractice cases;
8. Regulation or modification of the system of contingency fee payments to attorneys;
9. Expansion of the Good Samaritan laws to allow volunteers and charitable organizations to serve the public without the threat of malpractice;
10. Shorter duration for the statute of limitations for minors; and
11. Implementation of a uniform system of several, and not joint, liability (where the physician is liable only to the extent he or she is responsible).

The AAOS recognizes that the medical profession must continue to work to improve the quality of medicine.

The medical professional must recognize that quality of care can vary from physician to physician. Through research, evaluation of malpractice data, continuing medical education and minute scrutiny of licensing procedures, the medical profession can squarely address the problem of services that fall below the standard of care. The profession must also develop a mechanism dealing with the impaired or marginal physician who does not consistently practice quality medical care.

The AAOS believes that in order to promote the equitable treatment of injured patients throughout the country, tort reform at the federal level should be a priority. The AAOS believes that injured patients have the inalienable right to seek relief through the court system, and in states that lack effective tort reform; the court-based system for handling medical malpractice claims has not served the public well. Reforms should be proposed to reduce the number of frivolous suits and those of questionable merit.

©April 1995. Revised February 2001 American Academy of Orthopaedic Surgeons

This material may not be modified without the express written permission of the American Academy of Orthopaedic Surgeons^®.

Position Statement 1118

For additional information, contact Public Education and Media Relations Department at

847-384-4031.