Helathcare and Tort Reform

7/29/2019 Helathcare and Tort Reform

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HEALTH CAREAND TORT

Economics of Healthcare andPolicy


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TORT LAW

A tort is a civil wrongdoing or injury, other than contractual,which gives rise to an action for damages to compensate theinjured party.

In a tort suit, the alleged injured party (claimant or plaintiff)seeks monetary payment (damages).

Compensation is sought for harm allegedly done

by a defendant or an actor


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Damages may becompensatory, that is,designed to make the injuredparty "whole" to the extentthat money can do so

Damages may also bepunitive, that is, set at a levelintended to punish the actorand serve as an example todeter others

Damages


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TEST YOUR KNOWLEDGE

An emergency roomphysician referred an autoaccident victim with deepfacial lacerations to another

hospital. En route, the patientsuffers further seriousinjuries as a result of theambulance being involved ina serious collision. Theinjured party sues the first

hospital and the attendingphysician for negligence.


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Hint

The four elements of liabilityfor actionable negligence thatmust be established are:

Duty Owed- the existence of a

professional relationship

Breach of Duty- deviationfrom w

hat should have been

done

Injury, and Proximate Cause or

Causation- a direct causalrelationship between breachof duty and injury


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ANSWER

Breach of duty could not beestablished, therefore, liabilitycould not be proven


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HISTORY OF TORT IN THE US

Negligence law in America began to take shape during the 1830sand 1840s as a general theory of liability for carelessly causedharm. It is dated to Chief Judge Shaws 1850 decision in Brown v.Kendall.

Negligence emerged as a distinct tort sometime during the middleof the nineteenth century.

The essence of the tort was that a person should be subject toliability for carelessly causing harm to another.

Also essential to negligence, evident from an early date, was the

necessity of a causal connection between the defendants breachof duty and the plaintiffs damage that was natural, probable,

proximate, and not too remote.


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H.R. 5

H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL

LEGISLATION) FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR

Passed in theHouse on March22, 2012


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SECTIONS WITHIN HR5

Findings and purpose

Encouraging speedy resolution of claims

Compensating patient injury

Maximizing patient recovery

Additional HEALTH benefits

Punitive damages




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FINDINGS

Congress finds that our current civil justice system isadversely affecting patient access to health careservices, better patient care, and cost-efficient healthcare, in that the health care liability system is a costly

and ineffective mechanism for resolving claims ofhealth care liability and compensating injured patients,and is a deterrent to the sharing of information amonghealth care professionals which impedes efforts to

improve patient safety and quality of care.




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FINDINGS CONTD

Congress finds that the health care liability litigation systemsexisting throughout the United States have a significant effect on theamount, distribution, and use of Federal funds because of

(A) the large number of individuals who receive health care

benefits under programs operated or financed by the FederalGovernment

(B) the large number of individuals who benefit because of theexclusion from Federal taxes of the amounts spent to providethem with health insurance benefits

(C) the large number of health care providers who provide itemsor services for which the Federal Government makes payments.


LEGISLATION) ., FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR


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PURPOSE

Implement reasonable, comprehensive and effective health careliability reforms which are designed to:

Improve availability of health care services in cases in which health careliability actions have be shown to be a factor in decreased services

Reduce the incidence of defensive medicine and lower the cost of health

care liability insurance (all of which are factors in the escalation of health carecost)

Ensure persons with a health care injury care receive fair and adequatecompensation

Provide increased sharing of information in the health care system which willreduce unintended injury and improve patient care




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SPEEDY RESOLUTION OF CLAIMS

Three years after the dare of injury or one year after the discovery




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COMPENSATING PATIENT INJURY

UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL ECONOMICLOSSES IN HEALTH CARE LAWSUITS

Nothing in this ACT shall limit a claimants recovery of the dull amount of theavailable economic damages




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MAXIMIZING PATIENT RECOVERY

In any health care lawsuit in which the attorneyfor a party claims a financial stake in theoutcome by virtue of a contingent fee the court

shall have the power to restrict the payment ofthe claimants damage recovery to the attorney




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PUNITIVE DAMAGES

Punitive damages may, if otherwise permitted byapplicable State or Federal law, be awarded againstany person in a health care lawsuit only if it is provenby clear and convincing evidence that such person

acted with malicious intent to injure the claimant, orthat such person deliberately failed to avoidunnecessary injury that such person knew the claimantwas substantially certain to suffer. In any health carelawsuit where no judgment for compensatory damages

is rendered against such person, no punitive damagesmay be awarded with respect to the claim in suchlawsuit.




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FACTORS CONSIDERED

In determining the amount of punitive damages, ifawarded, in a health care lawsuit, the trier of factshall consider only the following

The severity of the harm caused by the conduct

The duration of the conduct or any concealment of

The profitability of the conduct to such party




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MEDICAL LIABILITY REFORM DEMONSTRATION GRANTS

The Patient Protection and Affordable Care Act (ACA) authorized$50 million in demonstration grant money to States for thedevelopment, implementation, and evaluation of alternatives tocurrent tort litigation, such as certificate of merit programs, whichrequire a finding that a suit has merit before it can proceed to trial,

and health courts, which would have cases heard by a panel ofmedical experts rather than a lay jury.

Each state applying for funds has the liberty to develop analternative system, must allow for the resolution of disputes, andpromote a reduction of health care errors by encouraging thecollection and analysis of patient safety data related to disputes

by organizations that engage in efforts to improve patient safetyand the quality of health care.


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THE OTHER SIDE

alternative-dispute resolution route and sets up, say, anarbitration system presided over by a panel of medical experts theres a huge loophole. The law allows any plaintiff to opt out of

a program he or she doesnt like, and pursue his or her claims in

state court.


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COST OF DOING BUSINESS

The Cost of Medical Malpratice By State
http://www.statehealthfacts.org/comparetable.jsp?ind=437&cat=8&sort=697http://www.statehealthfacts.org/comparetable.jsp?ind=437&cat=8&sort=697


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AVERAGE CLAIM PAYMENTS BYSTATE


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THE MOST OBVIOUS MEDICALMALPRACTICE SOLUTION IN THE

WORLD


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CANADA

Malpractice insurance premiums in Canada are lower than thosein the United States for the following three major reasons:

The courts in Canada have set caps on medical liability awards.

Existing Canadian laws set a high hurdle for proving medical

liability. The CMPA is notorious for vigorously defending any and all

medical liability suits.

Additionally, in Canada, the losing party pays approximately two-thirds of the winners costs. This is a significant disincentive for

bringing a medical liability suit.


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ENGLAND

In England, the National Health Service (NHS) employs mostphysicians and administers all of the legal and business aspectsof practicing medicine. Physicians are not personally liable formedical liability expenses or claims and, as a result, they do nothave to purchase medical liability insurance.

The NHS has established a series of defense trusts that raisefunds using a pay-as-you-go approach

Only 4 percent of all potential claims result in trials and mostclaims are closed in less than 18 months.

The cost of the settlement is spread evenly over the plaintiffs life.In 2008, only 5,470 claims were filed.


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GERMANY

Germany guarantees universal healthcare coverage,

Judges, not juries, try German civil cases

standardized reimbursement tables for noneconomic losses guidejudges decisions

If a claimant wants an award greater than the amount specified inthe table, the costs of the litigation are deducted from the award

medical malpractice awards for severe cases have risen to anaverage of nearly $650,000 per successful suit

All malpractice claims are initially referred to mediation boardsmade up by experts designated by Germanys Physicians Guild

Free


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SWEDEN

In 1996, the Patient Torts Act modified the no-fault system,requiring that patients go to court to prove liability claims and thatall physicians carry malpractice insurance.

Patients are compensated for complications from transmission ofinfections and side effects of medication, or if a differentprocedure might have prevented the injury

Compensation is paid through a patient insurance fund that isfunded by a tax on organizations that represent physicians


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JAPAN

Japanese Medical Association, which represents about 40 percent ofthe countrys physicians

Japanese physicians earn their income from outpatient care

A study by the Institute of Medicine found that the number of errorsand reportable events in Japan was nearly equal to those in the

United States Patients pursuing claims must initially go through a binding mediation

process

Societal norms also may play a role in the rise of malpractice suits inJapan.

The country has experienced an across-the-board erosion of trust inJapanese professionals, including medical personnel. In addition,awareness of patient rights, including the right to be compensated inthe case of medical error, is on the rise in Japan.


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TRUE OR FALSE

A. Japanese doctors earntheir living from ambulatorycare?

The H.R.5 was passed bythe House in 2011?

Juries try Germanmalpractice cases?

False- outpatient care

False- 2012

False- Judges


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REFERENCES

http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/

http://blog.hawaii.edu/aplpj/files/2011/12/APLPJ_13.1_Bublick.pdf

http://www.kff.org/insurance/upload/medical-malpractice-law-in-

the-united-states-report.pdf http://armymedical.tpub.com/MD0066/MD00660085.htm

http://online.wsj.com/article/SB124631652544770707.html

http://www.aaos.org/news/aaosnow/sep11/managing4.asp
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THANK YOU!


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REFERENCES

http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/

http://blog.hawaii.edu/aplpj/files/2011/12/APLPJ_13.1_Bublick.pdf

http://www.kff.org/insurance/upload/medical-malpractice-law-in-

the-united-states-report.pdf http://armymedical.tpub.com/MD0066/MD00660085.htm
http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://www.kff.org/insurance/upload/medical-malpractice-law-in-the-united-states-report.pdfhttp://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/

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Helathcare and Tort Reform