Published 11/1/2009
Mary Ann Porucznik

Board approves position statement on medical liability reform

“Reform is necessary to improve the overall healthcare system”

At its meeting in September, the American Association of Orthopaedic Surgeons (AAOS) Board of Directors approved a revised position statement on medical liability reform. The new statement outlines the challenges of the current medical liability system, basic principles of reform, and program components required to achieve medical liability reform.

The statement lists the following six problems with the current medical liability system:

  1. It fails to fairly compensate those injured through medical negligence in a timely manner.
  2. Its adversarial nature interferes with the patient-physician relationship.
  3. It prevents analysis of medical errors and impedes lessons learned.
  4. It compromises quality by encouraging defensive medicine.
  5. It escalates the cost of health care.
  6. It reduces patient access to care by decreasing physician supply.

The AAOS statement calls for broad reforms to address these challenges and outlines specific programmatic components to that reform. It includes alternative dispute resolution, arbitration, mediation, and prearranged patient-physician agreements as alternatives to litigation, and it calls for the establishment of medical courts with trained judges. It also calls for “safe harbor” from liability for physicians who follow established and approved clinical practice guidelines.

To address the issue of timely, fair compensation to those negligently injured, the statement suggests scheduled payments for certain typical injuries and the establishment of an “administrative compensation system using an evidence-based and expert-developed predetermined list of compensable injuries resulting from negligent care.”

The statement also calls for modification to reporting requirements for the National Practitioner Data Bank that would reduce the emphasis on punitive reporting and support open communication, prompt resolution and compensation, and confidential data collection to improve patient safety.

The impact of federal reform
Ever since California instituted the Medical Injury Compensation Reform Act (MICRA) in 1975, several states have enacted tort reform measures. Because federal healthcare reform may also include medical liability reform, the AAOS believes that “no federal legislation pertaining to liability reform should include provisions that would undermine effective state tort reform provisions or the ability of states to enact tort reform tailored to local needs.”

Among the proven measures for providing interim relief, the statement lists the following:

  • Specific, per claimant caps on noneconomic damages
  • Mandatory offset of collateral sources of payments
  • Periodic payment of future damage awards
  • Expert witness qualifications and accountability
  • Expanded “Good Samaritan” laws
  • Shorter statutes of limitations for minors and/or statute of repose
  • A uniform system of several and not joint liability
  • “Safe harbor” for following best practice guidelines

Mary Ann Porucznik is managing editor of AAOS Now. She can be reached at porucznik@aaos.org