Let physicians treat the patient — not the potential lawsuit
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As the Congress considers changes to the healthcare system, an area that could improve patient access to specialty care and dramatically slash healthcare costs is commonsense medical liability reform.

Healthcare specialists nationwide are calling on the House to pass the Protecting Access to Care Act of 2017, H.R. 1215. Modeled in part after California’s successful Medical Injury Compensation Reform Act (MICRA), this legislation is a win-win for patients and providers. This sensible legislation will reform medical liability laws to reduce the costly practice of “defensive medicine.” It ensures that patients, not lawyers, are appropriately compensated for medical injuries, and will save taxpayers billions of dollars — all while increasing timely access to healthcare.


First and foremost, the bill fully compensates deserving patients for all economic damages. It would cover past and future medical expenses, past and future lost wages and earning potential, rehabilitation costs, household services, out-of-pocket expenses — and up to an additional $250,000 for non-economic damages, such as those awarded for pain and suffering. This will ensure that patients who experience medical negligence will be fairly compensated for their injuries.


The court also will have the authority to restrict the percentage of a patient’s award that an attorney on a contingency fee can collect. For example, if a patient receives $1 million for his or her injury, the attorney can obtain a maximum of $221,000  — well below what they take from their clients today but still a sizeable fee. The majority of the award will instead go directly to the deserving patient, who needs it the most.

This legislation will also help keep costs down, without sacrificing the patient’s physical, emotional and economic well being. For example, in today’s litigious climate, many healthcare professionals practice what is known as “defensive medicine.” Aimed solely to prevent medical liability lawsuits, specialists may order additional CT or MRI scans, tests or other treatments, even if there is little evidence to support such medical interventions.

It is estimated that the practice of defensive medicine costs our nation anywhere from $46 billion to $289 billion annually. The bill would also make financial sense for taxpayers. The non-partisan Congressional Budget Office reported that the bill would save $44 billion over the next decade in federal spending on the Medicare and Medicaid programs. Overall, these reforms would reduce our national deficit by almost $50 billion over the same 10-year period.

Additionally, 68 percent of medical liability claims are dropped, dismissed or withdrawn without any payment. Of cases that actually go to trial, 88 percent are won by healthcare providers. Specialty physicians incur significant costs to defend themselves against these meritless claims. Under the bill, premiums for medical liability insurance — which for some specialists such as neurosurgeons and orthopedic surgeons can far exceed $100,000 per year — would be well below current rates.

Lastly, while the Protecting Access to Care Act adopts many of the reforms that have been thoroughly tested in the states, and proven successful in improving the medical liability climate, it would also protect those states that have enacted effective reforms and provide substantial flexibility for states to adopt variations of these reforms in order to meet their unique circumstances.

Astronomical medical liability insurance rates and expensive and exhausting legal defenses have pushed many qualified medical professionals out of their home states and out of healthcare altogether, dramatically reducing patients’ timely access to quality care. In the spine field, I know a few outstanding surgeons who have decided not to perform particular high-risk, but potentially life-changing surgeries any longer due to fear of litigation. This lack of qualified healthcare provider leaves patients — particularly those in rural or low-income areas — with even fewer care options.

When physicians are free to treat the patient — not the potential lawsuit — access to healthcare increases, costs drop and patients thrive. Adopting the Protecting Access to Care Act’s time-tested reforms would go a long way in keeping qualified healthcare professionals in the field, doing what they love: taking care of patients.

John Finkenberg, MD is a California orthopedic surgeon and is president of National Association of Spine Specialists. NASS is a member of the Alliance of Specialty Medicine, a non-partisan coalition of national medical societies representing specialty physicians in the United States.

The views expressed by contributors are their own and are not the views of The Hill.