Neither patients nor caregivers are well served by the traditional regime of medical liability, but debates about reform have become nonproductive battles between pro-defendant and pro-plaintiff forces. Health reform did nothing to alter the political dynamic or the underlying problems of preventable injury and defensive medicine. Patients as a class could benefit if conventional tort limits were traded for more efficient care under reform or if broader reforms of liability could be demonstrated successful. The pre-existing demonstration mechanisms of the Agency for Healthcare Research and Quality better serve this purpose than do the Act's very limited provisions.
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Political battles over malpractice reform have recurred for 35 years, starting at the state level. Many states have enacted caps on awards and other tort reforms amid liability insurance crises proclaimed in the mid-1970s, mid-1980s, and early 2000s. Since the mid-1990s, Republicans have unsuccessfully sought similar malpractice limits at the federal level. Sharp run-ups in claims rates preceded the first two crises; the last seemed more driven by increases in awards and other costs, along with insurance market developments. Defensive medicine arose separately as a national policy issue in the late 1960s. At the time, medical liability was expanding from the very low level of the 1950s because of shifts in both tort doctrines and social culture.
The debates about problems and reforms are acrimonious, and arguments have become routinized. Conventional tort reform is a zero-sum game, much as lawsuits are—every gain for one side is a loss for the other. Meanwhile, neither patients nor caregivers are well served by the traditional liability regime.1
The liability provisions of the Patient Protection and Affordability Act (PPACA)2 did nothing to change this political dynamic or the underlying problems. The number of preventable injuries remains high, almost entirely compensated by health insurance rather than liability insurance. Some defensiveness persists, encouraging overutilization and hampering cost containment and many forms of safety promotion. Accountability for underperforming practitioners remains elusive, possibly to be improved by other parts of health reform. And liability processes continue to consume substantial time and resources to deliver compensation to a very small share of injured people.
This brief describes the relevant provisions of PPACA and lays out some alternative approaches to problems of medical injury and liability.
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