Hafemeister Addresses Omission of Medical Malpractice Reform in Health Care Law

October 21, 2011

Faculty Q&A

While the federal health care reform law enacted in 2010 brought about a long list of changes to the health care system, it notably lacked substantial reforms targeting medical malpractice liability.

Thomas Hafemeister's new paper explores the lack of medical malpractice reform in the federal health care law enacted in 2010.

University of Virginia law professor Thomas Hafemeister and co-author Joshua Hinckley Porter '10 explore that omission in a new paper, "The Health Care Reform Act of 2010 and Medical Malpractice Liability: Worlds in Collision or Ships Passing in the Night?"

One out of every 100 hospital patients in the United States suffers negligent treatment and as many as 98,000 die each year as a result, causing an estimated economic burden of $17 billion to $29 billion in preventable medical injuries each year, according to Hafemeister. Meanwhile, the annual direct cost that health care providers incur from medical malpractice liability is asserted to be in the tens of billions of dollars.

At the same time, physicians' malpractice insurance premiums have increased significantly in recent years. Furthermore, one Harvard University study cited in Hafemeister's paper found that the cost of defensive medicine totaled $45.6 billion in 2008, or about 2 percent of the nation's health care spending.

In your paper, you note that the health care reform does not substantially contribute to reforming medical malpractice liability. What, if any, impact does the law have on medical malpractice litigation?

The law has virtually no direct impact on existing medical malpractice litigation. While it does extend federal malpractice protections to the nonmedical personnel of free clinics, this is a relatively small group of individuals and its inclusion was not controversial.

The paper argues that the law may have an indirect effect by the way in which it calls for and funds studies of possible alternative means of addressing medical malpractice. Because it places restrictions on which alternatives may be studied, other potentially viable alternatives may not receive attention and thus may not be considered in subsequent debates over how best to reform medical malpractice liability.

Another possible indirect effect of the law is its call for and funding of efforts to improve the quality of health care. To the extent that such improvements are identified and ultimately become widely endorsed, they may eventually constitute a newly emerging standard of care that guides this litigation.

You suggest that the law could make it even more difficult for the two political parties to come together to reform medical malpractice. Can you elaborate?

For one, the passage of this law appears to have exacerbated already-existing partisan divides. It is widely asserted that bipartisan efforts in Congress and in many states have ground to a virtual halt. Because the views of the two parties on even the basic question of whether there is a need for medical malpractice reform were already highly divergent, the vitriol associated with the passage of the health care reform law is likely to only make it even more difficult to develop a consensus on whether and how medical malpractice reform should proceed.

Do you foresee the possibility of any meaningful reforms to medical malpractice liability?

The easy answer to that question, of course, is that one party could obtain a dominant majority at the federal level or within any of the various state governments and simply push through such legislation (although I note in the paper that any such federal legislation might be subject to the same sort of judicial challenge that is currently playing out with regard to the 2010 health care reform law).

Beyond that, I think it would require a general consensus that the existing medical malpractice liability system is seriously flawed. That would probably require both ends of the political spectrum recognizing that considerable inefficiencies are associated with the existing system, while reaching agreement on a more efficient and less punitive means to fairly compensate patients injured as a result of medical malpractice.

Did your research lead you to conclude whether or not medical malpractice reform is needed?

There is a need to provide a more efficient and less punitive means to fairly compensate patients injured as a result of medical malpractice.

What, if any, specific reforms do you think might succeed in driving down health care costs and improving patient care?

I am currently working on a paper that will directly address this question. Any such reform needs to incorporate several key components to redress the inefficiencies and inequities that exist in the current system, including how best to (1) compensate patients who have been injured as a result of medical malpractice, (2) fairly identify which acts and omissions constitute medical malpractice, and (3) provide feedback to the health care community that will enhance its ability to remedy any systemic problems and target incompetent practitioners for corrective actions.

How did you become interested in this topic?

The short answer is I have been teaching courses in medical malpractice and health care quality for over a dozen years. You can hardly teach these courses without being aware of and drawn into the long-standing debates, which in this country predate the Civil War, regarding calls for medical malpractice reform.

However, my own interest pre-dated even this. I see this topic as a natural outgrowth of my law and psychology background, which focuses on human behavior, including both its successes and failures, and the systems in which we exist, which can either enhance or impede appropriate behaviors. In addition, every position I have held since I graduated from law school has had a health law component and for better or for worse medical malpractice reform has tended to dominate this field. Further, it is hard not to be drawn into a debate that is so polarizing and seemingly intractable.

What will you be working on next?

I am juggling at least a dozen papers as well as a casebook, all of which I see as related to health law. In addition to the paper I noted above that will contain my modest proposal for medical malpractice reform, I am also working on a couple of papers that will explore hospital liability and one that addresses the potential liability of pharmaceutical companies. I am also trying to convince my brilliant co-author of the current paper, Joshua Hinckley Porter '10, to take a break before he begins working on his second novel and to continue to collaborate with me in these efforts.

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