Medical liability issues are receiving increased attention in Washington as President Obama and Congress pursue health system reform. Many physicians and health policy experts have argued that the threat of medical liability lawsuits have forced doctors to practice defensive medicine, driving up the costs of health care.

President Obama has ruled out caps on non-economic damage awards, like the $250,000 cap on non-economic damages in California’s landmark medical malpractice reform law MICRA. Obama has, however, indicated that he supports pilot projects to explore how to reduce the financial impact of medical liability lawsuits. Last week, the Administration took initial steps on this approach, when the U.S Department of Health and Human Services unveiled a modest plan that would examine ways to discourage frivolous medical malpractice lawsuits. Under the plan, the federal government would provide $25 million in grants to identify practices that would reduce medical errors, lower malpractice insurance premiums, and prevent frivolous lawsuits.

There is also growing concern among physicians about the liability implications of “comparative effectiveness” research, which will attempt to objectively demonstrate the effectiveness of medical treatments. CMA and others in organized medicine are working hard to ensure that physicians are protected if they deviate from any clinical guidelines produced through the clinical effectiveness research that is mandated through the health reform legislation. CMA believes that physicians must be allowed to deviate from practice guidelines when in their clinical judgment it is in their patient's best interest, without being exposed to increased liability. CMA believes that data gleaned from such research must not be independently used to establish standards of care or deny coverage, or be used as evidence in medical malpractice cases.

Additionally, CMA’s federal advocacy on medical liability issues is focused on protecting MICRA. MICRA was enacted in 1975 by overwhelming bipartisan support in response to a crisis of runaway medical liability costs and the resulting shortage of health care providers, most predominately in high-risk specialties. MICRA’s cap on non-economic damages has reduced and stabilized medical malpractice insurance costs in California by reducing the incentive to litigate weak claims.

The law has kept malpractice premiums in California relatively reasonable, compared to those in other states without such laws. Once the highest in the nation, California malpractice premiums fell 12 percent from 1986 (the year the constitutional challenges to MICRA were exhausted) to 2000, while rising 55 percent nationally. Today, the average California physician saves $64,264 a year in malpractice insurance premiums when compared to colleagues in Florida, New York, and Michigan. In high risk specialties the savings are even more dramatic. The average obstetrician in Los Angeles, for example, pays $49,804 annually for malpractice insurance, while in Dade County, Florida, it’s $202,640.

One of CMA’s main priorities over the past three decades has been to protect this forward-thinking law. Not surprisingly, the main source of the attacks on MICRA have been from the personal injury lawyers, who would see a windfall if MICRA were overturned. The law not only limits non-economic damage awards, but also limits attorney fees in malpractice cases.

Contact: Elizabeth McNeil, 415/882-3376 or emcneil@cmanet.org.