Medical Malpractice:

A Framework for Action

HRD-87-73: Published: May 20, 1987. Publicly Released: Jun 8, 1987.

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In response to a congressional request, GAO assessed the problems relating to increases in the cost of medical malpractice insurance in recent years, focusing on: (1) states' attempts to deal with the problems; and (2) possible state and federal actions.

GAO found that, although it could not identify an obvious cause for the increase in malpractice insurance or any specific ways to prevent further increases, states could attempt to reduce insurance costs by: (1) requiring health care providers to participate in risk management programs as a condition of state licensing; (2) ensuring that physicians and other health care practitioners receive adequate training, supervision, and discipline from appropriate professional and state agencies; (3) determining if the information states use in making decisions concerning rates and solvency is sufficient; (4) educating patients as to what they should realistically expect from their health care; and (5) determining appropriate changes in state tort laws or developing viable alternatives to the tort system to improve the resolution of malpractice claims. GAO believes that, before implementing tort reform, states and the federal government must judge whether present compensation and penalties are inordinate or just.

Matters for Congressional Consideration

  1. Status: Closed - Implemented

    Comments: HHS awarded a contract to UNISYS to establish the database under the act. The National Medical Practice Database will open in October 1989. It will not be meaningful to hold oversight hearings on use of the data to better assess the quality of care provided until a sufficient amount of data have been collected.

    Matter: To reduce the incidence of medical malpractice through improved delivery of medical care, cognizant congressional committees should conduct periodic oversight hearings to determine the progress the Department of Health and Human Services (HHS), the states, and appropriate medical groups are making in: (1) implementing the provisions of the Health Care Quality Improvement Act of 1986; and (2) using the information reported in the act to better assess the quality of care provided by health care practitioners.

  2. Status: Closed - Implemented

    Comments: H.R. 1444 was enacted as P.L. 100-93, on August 18, 1987.

    Matter: To reduce the incidence of medical malpractice through improved delivery of medical care, Congress should enact H.R. 1444 and its companion bill S. 661 to authorize the Secretary of Health and Human Services to exclude health care practitioners nationally from participation in the Medicare and Medicaid programs who are: (1) excluded by any state Medicaid program; (2) excluded by Medicare; (3) convicted of crimes involving any federal or nonfederal health program; or (4) the subjects of sanctions by any state licensing board.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: Effective October 1, 1989, the National Practitioners Database, which was mandated by the Health Care Quality Improvement Act, is operational.

    Recommendation: To reduce the incidence of medical malpractice through improved delivery of medical care, the Secretary of Health and Human Services should aggressively implement the provisions of the Health Care Quality Improvement Act of 1986 by developing a timely and effective system for making information about the competence or professional conduct of physicians and other practitioners available to hospitals, state licensing boards, and other health care entities.

    Agency Affected: Department of Health and Human Services

  2. Status: Closed - Implemented

    Comments: On April 27, 1988, HHS sponsored a conference on risk management and quality assurance to discuss ways of reducing medical injuries due to malpractice. A broad spectrum of groups concerned with the delivery of health care were represented, including HCFA, AMA, JCAH, and medical specialty societies.

    Recommendation: To develop realistic consumer expectations regarding the potential risks of medical care, the Secretary of Health and Human Services should take the lead and work with the medical profession through various professional organizations (such as the American Medical Association (AMA), the American Hospital Association, and physician specialty boards and societies) to initiate major efforts to: (1) educate the public as to what to realistically expect from the health care system; and (2) stress to physicians the need to fully communicate to the patient the potential risks associated with medical treatment.

    Agency Affected: Department of Health and Human Services

  3. Status: Closed - Implemented

    Comments: HHS and Justice drafted the Model Health Care Provider Liability Reform Act which included all of the reforms GAO recommended. The act was sent to all state governors and state legislatures in December 1987, and to state medical societies, state medical boards, and national specialty societies in January 1988.

    Recommendation: The Secretary of Health and Human Services and the Attorney General should take the lead in working with states and affected interest groups to evaluate the merits of individual tort reforms and develop model laws that the states could enact. The following tort reforms and their benefits and trade-offs should be carefully considered for inclusion in these model laws: (1) a shortened statute of limitations applicable to adults and minors for filing malpractice claims; (2) revised joint and several liability laws to require that provider damages be proportionate to degree of responsibility for the injury; (3) limits on fees for the plaintiff's lawyer through use of sliding fee schedules; (4) mandatory reductions of awards by amounts paid by collateral sources; (5) requirements that awards covering large future economic losses be made on a periodic basis; and (6) reasonable caps on noneconomic losses.

    Agency Affected: Department of Health and Human Services

  4. Status: Closed - Implemented

    Comments: HHS and Justice drafted the Model Health Care Provider Liability Reform Act which included all of the reforms GAO recommended. The act was sent to all state governors and state legislatures in December 1987, and to state medical societies, state medical boards, and national specialty societies in January 1988.

    Recommendation: The Secretary of Health and Human Services and the Attorney General should take the lead in working with states and affected interest groups to evaluate the merits of individual tort reforms and develop model laws that the states could enact. The following tort reforms and their benefits and trade-offs should be carefully considered for inclusion in these model laws: (1) a shortened statute of limitations applicable to adults and minors for filing malpractice claims; (2) revised joint and several liability laws to require that provider damages be proportionate to degree of responsibility for the injury; (3) limits on fees for the plaintiff's lawyer through use of sliding fee schedules; (4) mandatory reductions of awards by amounts paid by collateral sources; (5) requirements that awards covering large future economic losses be made on a periodic basis; and (6) reasonable caps on noneconomic losses.

    Agency Affected: Department of Justice

  5. Status: Closed - Implemented

    Comments: The Robert Wood Johnson Foundation has funded several projects testing or examining the feasibility of alternative dispute resolution mechanisms.

    Recommendation: To encourage increased experimentation with various alternative dispute resolution mechanisms for medical malpractice claims, the Secretary of Health and Human Services should fund a series of demonstration projects designed to test the efficiency and efficacy of various dispute resolution mechanisms, including mediation, pretrial screening panels, use of arbitration, and no-fault compensation programs.

    Agency Affected: Department of Health and Human Services

 

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