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California’s Proposition 46 And The Uncertain Future Of Medical Malpractice Liability Reform

December 10th, 2014

On November 4, 2014, Californians voted against Proposition 46, an unprecedented statewide ballot initiative that would have, among other things, raised the $250,000 cap on noneconomic damages to $1.1 million and indexed it to the rate of inflation in future years. The margin was significant — 67 percent voted against it.

For nearly 40 years, noneconomic damages, which entail payments to patients for pain and suffering resulting from medical malpractice (as opposed to economic damages such as lost wages and medical costs), have been at the forefront of debates over the U.S. medical liability system. Currently, 22 states have caps on noneconomic damages of varying sizes in place. If it had passed, the ballot initiative would have raised the cap on noneconomic damages in California from among the most restrictive to the least restrictive among all states with caps.

Opponents of Proposition 46, and supporters of malpractice reform more generally, argued that raising the noneconomic damages cap would have increased malpractice awards and subsequently malpractice premiums, which would be passed on to patients and insurers as higher costs.

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Health Affairs Web First: Noneconomic Damage Caps Reduced Medical Malpractice Payments, With Varied Effects

October 22nd, 2014

With the 2014 election weeks away, a provision of California’s Proposition 46, raising the cap on medical malpractice payments for noneconomic damages, has been in the news. This provision would increase the payment cap from $250,000 to $1.1 million. A new study, being released today by Health Affairs as a Web First, sheds light on the potential effect of this proposition.

Study authors Seth A. Seabury, Eric Helland, and Anupam B. Jena looked at the impact of medical malpractice reforms on the average size of malpractice payments in several physician specialties and compared how the effects differed according to the size of the cap. It found that caps reduced the average payments by 15 percent compared to no cap—and a $250,000 cap reduced average payments by 20 percent.

On the other hand, a less restrictive $500,000 cap had no significant effect. The authors also found specialty variations, with the largest impact involving pediatricians and the smallest for claims of surgical subspecialties and ophthalmologists.

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If A Drug Is Good Enough For Europeans, It’s Good Enough For Us

February 14th, 2014

Note: This post is coauthored by Paul Howard and Yevgeniy Feyman of the Manhattan Institute.

Meningitis is a terrible disease that can kill its victims in a single day. About 4,100 new cases are diagnosed annually in the U.S., with a mortality rate of more than 10 percent. Even with treatment, survivors are often left with serious side effects that can include brain damage and limb loss.

A recent meningitis outbreak at Princeton University was unique, however, because the vaccines typically required by universities don’t protect against the particular strain (serogroup B or “MenB”) of the outbreak. Luckily, Swiss drug manufacturer Novartis has developed a vaccine — Bexsero — that specifically targets this strain of meningitis; the drug has already been approved for use by the European Medicines Agency (EMA), the European Union’s equivalent of the Food and Drug Administration (FDA). And within about nine months the FDA allowed Princeton University to offer the vaccine on campus to its students.

Problem solved, right? Not so fast.

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A Call To Arms: Support For Emergency Care Isn’t Making The Grade

January 16th, 2014

Emergency departments (EDs) play a critical role within the American health care system, delivering life and limb saving care daily to thousands of patients. On January 16th 2014, the American College of Emergency Physicians (ACEP) released America’s Emergency Care Environment: A State-by-State Report Card to assess support for emergency care. This Report Card, the third edition of this report, assesses the current state of the acute care system on both a national and on a state-by-state level. This most recent edition provides an alarming evaluation of the support for the emergency care system in the United States, which is particularly concerning given the current state of change and uncertainty that is pervasive throughout the US with regard to health care.

The ACEP 2014 Report Card uses objective data to track various aspects of the acute care system in order to provide a better understanding of the trajectory the overall emergency care system. It is not a report on individual hospitals or health systems, but rather a grade of the policies, regulations and governmental activities that are important supports for emergency care.

The Report Card’s greatest value lies in its ability to validate on a detailed level the recent claims that have been reverberating throughout the U.S. and the international community related to the important role and need for inclusion of acute care within health systems. In a recent WHO Bulletin article, an Academic Emergency Medicine consensus conference proceedings, and most recently in the entire December issue of Health Affairs, experts argue that an emergency care system is a vital aspect of a mature, functioning health system; yet, is it frequently neglected and is not receiving enough attention. While these publications have used the best data available to validate their claims, this national report provides the most current and comprehensive data that support for the system is not only fraught with deficiencies but is headed in a downward trajectory.

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Cracking The Code On Health Care Costs: What The States Can Do

January 7th, 2014

State governments have a unique opportunity to transform the current health care system into one that provides higher-quality care at lower costs. The State Health Care Cost Containment Commission was created to identify how states might use their authorities and policy levers to guide this transformation. The members of the Commission, consisting of two former governors and high-level executives from major national health plans, all shared the same conviction: state governments were much more likely to succeed in lowering the growth rate of health care costs than any federal action in the next few decades. Moreover, the states are well positioned to accelerate the current trend toward integrated, coordinated care organizations that are held accountable for meeting cost management and quality goals.

The goal envisioned by the Commission is straightforward but ambitious: Replace the nation’s reliance on fragmented, fee-for-service care with comprehensive, coordinated care using payment models that hold organizations accountable for cost control and quality gains. Achieving this will take time. There is inertia in the current system and few incentives for changing it. However, the states are in a strong position to achieve meaningful reforms and create the needed incentives with the support of payers, providers, insurers, and consumers. As the nation’s “laboratories of democracy,” states can serve as a proving ground for new approaches that raise the efficiency and value of health care.

The Commission’s report, “Cracking The Code On Health Care Costs,” will be released tomorrow at the National Press Club.

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The Moral Imperative To Disclose Medical Error: Doing The Right Thing

January 7th, 2014

Editor’s note: For more on Ascension Health’s initiative to disclose unexpected events to patients, see Ascension Health’s Demonstration Of Full Disclosure Protocol For Unexpected Events During Labor And Delivery Shows Promise, part of a cluster of articles on alternatives to medical malpractice litigation in the January issue of Health Affairs.

Over a decade has passed since the majority of health care and practitioner accreditation and certification groups mandated the full disclosure of unexpected events and medical errors to patients and their families. Yet full disclosure, an element of establishing a ‘just culture,’ is still not the norm for most providers. Disclosure is difficult and there are impediments at the systemic and practitioner levels.

We at Ascension Health used our core values of truth and justice and our identity as a healing ministry to transition to a just culture that puts the priorities of those we serve above our own. We believe that these core values and identity are not unique and that all providers have a moral compass. Thus, we put forth a call to action for all health care providers to achieve the goal of establishing a just culture with 100 percent full disclosure by 2018.

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New Health Affairs: Examining Alternatives To Malpractice Litigation

January 6th, 2014

Health Affairs’ January issue, released today as major portions of the Affordable Care Act are taking effect, includes several papers reporting new evidence on the effects of early Medicaid expansions, as well as an examination of ACA implementation over the last four years. The issue also includes national health expenditure estimates for 2012 by authors at the Centers for Medicare and Medicaid Services Office of the Actuary.

In addition, the issue contains a cluster of papers exploring alternatives to malpractice litigation. This cluster was supported by a grant from Ascension Health. These papers reflect a research-based effort, administered through the Agency for Healthcare Research and Quality (AHRQ), to identify new approaches to litigation. The cluster includes:

  • “Let’s Make A Deal: Trading Malpractice Reform For Health Reform,” William Sage of the University of Texas School of Law and David A. Hyman of the University of Illinois
  • “Implementing Hospital-Based Communication-And-Resolution Programs: Lessons Learned in New York City,” Michelle Mello of Harvard School of Public Health and coauthors
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Implementing Health Reform: Political And Legal Battles, Data Security, And More

September 20th, 2013

The week of September 16, 2013, has been quiet on the Affordable Care Act regulatory front. Most of the noise has emanated from Capital Hill, where the House of Representatives seems poised to enact legislation that would “defund Obamacare” as part of a continuing budget resolution. Although this legislation has no chance of being enacted by the Senate and would be vetoed by the President in any event, it is interesting to speculate on what it would mean if the ACA were “defunded.”

The legislation apparently prohibits any federal funds being spent to carry out the provisions of the ACA and revokes all entitlements created under the ACA. (Although I have not yet seen text of the bill, it presumably resembles defunding legislation introduced in the House earlier this term. Defunding is obviously intended to block implementation of the individual and employer responsibility provisions, the premium tax credits, and the Medicaid expansion. It also, however, would seem to block provisions closing the Medicare prescription drug “doughnut hole” and expanding preventive services under Medicare. Indeed, it could be interpreted as ending all payments to providers under the Medicare program, since payments are currently being made under payment rules promulgated to incorporate changes under the ACA.

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New Health Affairs Issue: Health IT, Payment And Practice Reforms

August 5th, 2013

Health Affairs’ August issue, released today, covers a range of topics, including changes in health care delivery and financing sparked by the rise in health information technology (HIT) adoption. In the United States, progress in health IT adoption has been fueled in large part by the nearly $30 billion in incentives authorized by the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009. Founding editor John Iglehart observes that, “Strides forward have been steady, if uneven among different provider groups. Yet the end of the journey toward universal adoption of electronic health records is still years away.”

Notable articles include:

Achieving Meaningful Use In HIT: Some Hospitals Falling Behind. With nearly $30 billion in incentives available to US hospitals, to what extent have hospitals adopted electronic health record (EHR) systems that meet Medicare’s criteria for their “meaningful use”? Catherine DesRoches of Mathematica Policy Research Institute and coauthors analyzed Medicare data; they found a substantial increase in the percentage of hospitals receiving EHR incentive payments between 2011 (17.4 percent) and 2012 (36.8 percent). However, this increase was not uniform across all hospitals: critical access, smaller, and publicly owned or nonprofit hospitals appeared to be at particular risk for failing to meet Medicare’s meaningful-use criteria. Because hospitals failing to meet the criteria will be subject to financial penalties beginning in 2015, the authors recommend providing additional information technology workforce support, targeted grant programs, and close monitoring of the EHR vendor market to ensure that all hospitals have access to the technology they need.

Hospital Electronic Health Information Exchange Shows Improvement. Some encouraging findings are reported in a study by Michael Furukawa and coauthors of the Office of the National Coordinator for Health Information Technology, Department of Health and Human Services. Using national surveys of hospitals from 2008 to 2012, the authors found that in 2012 nearly six in ten hospitals actively exchanged electronic health information with providers and hospitals outside their organization, an increase of 41 percent since 2008. They also determined that EHR adoption and health information organization participation were associated with significantly greater hospital exchange activity, but the majority of hospitals still do not exchange clinical care summaries and medication lists. To address these deficiencies, the authors point to existing initiatives, such as the State Health Information Exchange Cooperative Agreement Program, to assist hospitals and help prepare to meet stage 2 meaningful-use requirements.

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January Health Affairs Examines Rocky Road Of Delivery System Transformation

January 8th, 2013

As US health care continues down the path of delivery system transformation, January’s Health Affairs explores areas of opportunities and challenges to achieving better health and better care at lower costs. Other articles focus on a range of topics of interest, including the length of time physicians spend with active and unresolved malpractice claims against them.

Seth Seabury at the RAND Corporation and coauthors report that the average physician spends almost 11 percent of his or her career with an open and unresolved medical claim. A major contributor is the length of the process of adjudicating such claims: The typical medical malpractice claim isn’t filed until almost two years after the incident occurred, and it isn’t resolved until 43 months post incident. When dealing with open claims, physicians spend up to 70 percent of that time with claims that never result in a payment.

Among the various distressing factors involved in this type of adjudication, patients and physicians alike may be more troubled by the length of time of the process than the potential damages, the authors say. They recommend exploring policy solutions that can decrease the time to resolution, including tort reform and alternative dispute management tools that can expedite the process and help limit meritless claims.

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Health Policy Brief: Reducing Waste In Health Care

December 14th, 2012

A new Health Policy Brief from Health Affairs and the Robert Wood Johnson Foundation examines waste in US health care. Estimates are that more than a third of annual US health spending may be wasteful. A September 2012 Institute of Medicine report estimated that $765 billion a year was wasted through provision of unnecessary services, inefficiently delivered services, excessive prices and administrative costs, and missed prevention opportunities and fraud and abuse.

This policy brief discusses these and other types of waste in health care, ideas for eliminating waste, and the considerable hurdles that must be overcome to do so. It is the companion to a July 2012 Health Policy Brief, “Eliminating Fraud and Abuse.”

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The Growing Bipartisan Support For Health Courts

October 2nd, 2012

The rising cost of America’s health care system – already 18 percent of GDP – is driving the country toward the fiscal brink, and nowhere is the need for a new paradigm to control costs more evident than in the area of medical liability. Doctors’ justified distrust of medical justice (which has an error rate of 25 percent) leads them to prescribe and perform treatments for no other reason than to prevent lawsuits. This “defensive medicine” is estimated to cost anywhere from $45 billion to more than $200 billion a year. Fortunately, a growing bipartisan consensus is pointing the way to a solution.

There is widespread public support for the creation of special health courts. And, despite the highly polarized nature of American politics today, there is consistent support across political parties. A nationwide poll, conducted in April by the Clarus Research Group for Common Good, the nonpartisan organization I chair, revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. Only 25 percent said that those claims should be decided as they are now, and there was virtually no difference between Democrats and Republicans on the issue: 68 percent of Republicans, 67 percent of Democrats, and 61 percent of independents support health courts.

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Looking Forward To An Improved Health Care System

August 14th, 2012

Now that the Affordable Care Act has been upheld by the U.S. Supreme Court, we must build on the progress that has been made to further improve our health care system. The American Medical Association is committed to making the system work better for patients and physicians, and I am thrilled to start my tenure […]

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Harmonizing The ACA With State Tort And Licensure Systems And Hospital Peer Review

July 3rd, 2012

The Supreme Court’s decision affirming the constitutionality of most of the Patient Protection and Affordable Care Act of 2010 (“ACA”) is likely to have a profound impact on health care quality, cost and access. This decision allows the country to move forward with ACA programs that encourage the movement from a customary-care model of medical […]

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Defensive Medicine

November 22nd, 2011

Editor’s note: Below, we offer “Defensive Medicine,” the first health policy poetry to appear on Health Affairs Blog. The author is Adam Possner, a general internist and an assistant professor at The George Washington University School of Medicine and Health Sciences, whose poetry has been featured in the Journal of the American Medical Association and […]

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Health Affairs Blog Most-Read List For October

November 10th, 2011

October’s list of most-read Health Affairs Blog posts is led by Maribeth Shannon’s piece on the challenges of getting consumers involved in directing their health care. Several posts on the Medicare Shared Savings Program (ACOs) final rule also make the list, as do posts on the legal fight over health reform; the process of determining […]

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The Health Wonk Review Unadorned

October 13th, 2011

With apologies to my more creative predecessors as Health Wonk Review hosts, there’s no theme today. (After all, how could one top Alistair Cookie?) I will get right to the great posts in this week’s edition. Costs And Premiums. At Managed Care Matters, Joe Paduda explores an apparent disconnect: flat medical costs coupled with rising […]

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Common Sense And Malpractice Reform

September 26th, 2011

Having both medical and law degrees typecasts me.  New acquaintances ask if I have ever sued myself.  Within the health policy community, colleagues assume I study medical malpractice. So I have let it become a self-fulfilling prophecy.  I worked on medical malpractice in the Clinton White House, and devoted my first scholarly efforts to analyzing […]

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Health Care And The State Of The Union

January 26th, 2011

Below, Kavita Patel, former director of policy for the White House Office of Public Engagement and Intergovernmental Affairs, discusses President Obama’s State of the Union address and House Budget Committee chairman Paul Ryan’s (R-WI) Republican response. See other posts on this topic by Len Nichols and Joseph Antos.  The Constitution mandates that the President “from time to time […]

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State of the Union: A Taste Of Budgets To Come

January 26th, 2011

Editor’s Note: Below, Joseph Antos, the Wilson H. Taylor Scholar in Health Care and Retirement Policy at the American Enterprise Institute, discusses President Obama’s State of the Union address. See other posts on this topic by Len Nichols and Kavita Patel.  In his State of the Union address, Barack Obama said the key to winning the future is […]

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