Currents in contemporary bioethics. Health care reform and medical malpractice claims.

The seemingly interminable debates about health care reform in the last few years have focused mainly on health care access, quality, and cost. Debates on the medical malpractice component of the issue have focused almost entirely on cost.1 The familiar arguments in favor of limiting liability include the financial and health costs of defensive medicine; decreased physician supply in certain specialties and geographic areas; excessive awards; and high transaction costs, including attorney and expert witness fees. The equally familiar arguments in favor of maintaining tort liability include the need to promote civil justice, deter substandard care, identify incompetent practitioners, and encourage systemic quality improvement. Numerous studies have explored the possible effects of damage caps and other measures on malpractice premiums, health care costs, and other financial endpoints.2 One relatively under-examined aspect of the issue is how federal legislation expanding access to health care might alter the number of medical malpractice claims. With the enactment of the Patient Protection and Affordable Care Act of 2010 (PPACA),3 it is especially appropriate to consider what effect, if any, the new law will have on the rate of medical malpractice claims. When fully implemented, PPACA will increase the number of individuals with health care coverage by approximately 32 million.4 As a result, there will be many millions of additional patient encounters each year. If the rate of adverse events arguably attributable to medical malpractice remains constant, then it might be assumed that the total number of medical malpractice claims will increase. In addition, with a physician work force of roughly the same size, there will be more patients per physician, and likely less time per patient visit. Thus, it might be assumed that more expedited medical care will increase the likelihood of medical errors and resulting medical malpractice claims. Several counter-arguments are possible, and health care reform might actually reduce adverse events and medical malpractice claims because of superior care. It can be asserted that better coordination through continuity of care and “medical homes” will improve outcomes and decrease adverse events; electronic health records, including clinical decision support, will provide physicians with comprehensive and timely patient health information, as well as messages about potential drug interactions and other problems; expansion of outcomes research and greater emphasis on evidence-based medicine will improve health care quality; and lifelong assessment, recertification, remediation, and more intensive licensing review will improve physicians’ clinical knowledge and skills, and remove the licenses of physicians unfit to practice medicine. There is a complicated and nonlinear relationship between medical malpractice events, medical malpractice claims, and medical malpractice costs.5 Changes in one of these measures will likely affect the others, but not necessarily in quantifiable or predictable ways. This article focuses exclusively on medical malpractice claims — and specifically the number of medical malpractice lawsuits initiated.6 It concludes that one of the leading reasons why individuals bring medical malpractice claims is to ensure the availability of funds for future medical care. Because health care coverage at affordable rates will be accessible in the public or private sector without regard to preexisting conditions, and annual and lifetime caps will be prohibited, significant numbers of injured patients are likely to forego medical malpractice claims. Consequently, even with more patient visits, the total number of medical malpractice claims is unlikely to rise and might even decline.