Medical Malpractice and Medical Error Disclosure · medical malpractice, whether tort law does either effectively.2 Most patients injured through medical negligence do not bring malpractice

Medical Malpractice and Medical Error Disclosure:Balancing Facts and Fears

Mimi Marchev

December 2003 Prepared with support from the Robert Wood Johnson Foundation

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Medical Malpractice and Medical Error Disclosure:Balancing Facts and Fears

Mimi Marchev

©December 2003

by

National Academy for State Health Policy50 Monument Square, Suite 502

Portland, ME 04101Telephone: (207) 874-6524Facsimile: (207) 874-6527E-mail: [email protected]: www.nashp.org

Prepared with support from The Robert Wood Johnson Foundation.

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National Academy for State Health Policy i December 2003

ACKNOWLEDGMENTS

The author wishes to thank The Robert Wood Johnson Foundation for its support of this project.

This report would not have been possible without the following people who generouslycontributed their time and expertise to reviewing early drafts. The paper benefitted from theirinput; however, any errors or omissions are those of the authors alone.

• Catherine Annas, Project Director, Massachusetts Department of Public Health; • Christine Dutton, Senior Counsel, Pennsylvania Department of Health;• Fred Heigel, Director, Bureau of Hospital and Primary Care Services, Office of Health

Management, New York State Department of Health; • Wendy Kronmiller, Assistant Attorney General, Counsel office of Health Care Quality,

Office of the Attorney General, Maryland; • Richard Lee, Deputy Secretary for Quality Assurance, Pennsylvania Department of Health;

and• Arthur Levin, Director, Center for Medical Consumers, New York.

Special thanks go to Jill Rosenthal of the National Academy for State Health Policy. Her patientand intelligent guidance are always appreciated. This paper draws heavily on—and is all thestronger for—her impressive work on patient safety and state mandatory reporting systems.


TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Possible Connections Between Mandatory Reporting and Malpractice Litigation . . . . . . . . . . . . . 2

State Strategies to Protect Data and Increase Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Including Comprehensive Protection of Data as an Integral Part of the System-Authorizing Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tort Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Beyond Tort Reform: Alternative Liability Demonstration Projects Proposed by IOM . . 12

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Appendix A: Selected State Tort Reform Measures

Appendix B: Recent State Malpractice Legislative Activity re: Tort Reform (1999-2003)

1To Err is Human: Building a Safer Health Care System (Washington, D.C.: National AcademyPress, 1999). Currently 21 states (CA, CO, CT, GA, FL, KS, ME, MA, MN, NV, NY, NJ, OH, PA, RI,SC, SD, TN, TX, UT, WA) have some form of mandatory reporting systems and several other states haveplans or legislation pending to establish systems.

1National Academy for State Health Policy i December 2003

INTRODUCTION

The Institute of Medicine’s 1999 report To Err is Human brought the issues of medical errors andpatient safety to state agendas by documenting that medical errors may cause up to 98,000preventable deaths in U.S. hospitals each year. As part of a comprehensive strategy to improvepatient safety, the Institute (IOM) recommended the creation of external reporting systems toidentify and learn from errors so as to prevent future occurrences. Two types of reporting systemswere discussed. Voluntary systems would collect information about “near misses” and wereenvisioned as confidential, having full protection and being for the sole purpose of learning waysto improve patient safety and quality. Mandatory reporting systems would receive reports ofserious adverse events and would be linked to systems of accountability and made available to thepublic.1

The release of the IOM report in 1999 coincided with another peak in the periodic rises inmalpractice insurance premiums. The confluence of these two events and the publicity given bothhave resulted in both an increase in the number of state mandatory reporting systems and ademand from providers in these states for strong protections of reported data.

Faced with two serious problems at the state level and with pressure to “do something” about boththe malpractice insurance crisis and the high incidence of medical errors, states have a uniqueopportunity to take action and to make significant change in state policy. This policy briefaddresses the issues raised by the convergence of medical error reporting and the fear of medicalmalpractice litigation. It discusses how states protect data with the intention of increasing thecompliance level of reporting, examines a sample state protection statute, and explores recentproposals for alternatives that would address the reluctance of many providers to report for fear ofpossible malpractice litigation.

2M. Marchev, The Medical Malpractice Insurance Crisis: Opportunity for State Action (Portland,ME: National Academy for State Health Policy, 2002). See also M. Mello, T.A. Brennan, Deterrence ofMedical Errors: Theory and Evidence for Malpractice Reform. Texas Law Rev 2002; 80:1595-1637.

3Marchev, 6 (citing the Harvard Medical Practice Study, Patients, Doctors and Lawyers: MedicalInjury, Malpractice Litigation, and Patient Compensation in New York (1990)).

4T.A. Brennan, C.M. Sox, H.R. Burstin. “Relation Between Negligent Adverse Events and theOutcomes of Medical Malpractice Litigation.” New England Journal of Medicine 1996; 335(26): 1963-1967.

5M. Marchev, J. Rosenthal, and M. Booth, How States Report Medical Errors to the Public:Issues and Barriers (Portland, ME: National Academy for State Health Policy, 2003), 20.

6Marchev, Rosenthal, Booth, 13.


Possible Connections Between Mandatory Reporting and Malpractice Litigation

Medical malpractice is governed by the legal system of torts. Under this system an award ofdamages to an injured claimant is designed both to compensate those who have been wrongedthrough another’s negligence and to deter future wrongs. It is arguable, however, in the case ofmedical malpractice, whether tort law does either effectively.2 Most patients injured throughmedical negligence do not bring malpractice suits, and of those who do, very few receive anycompensation.3 At the same time, any possible deterrent effect of malpractice litigation ismitigated by the findings of studies that show that in many successful suits there was probably noclear showing of negligence on the part of the provider.4 In this context, a question for states iswhether the specter of possible malpractice litigation is hampering the effectiveness of their errorreporting systems by creating resistance on the part of providers to freely report medical errors andadverse events.

Earlier this year, NASHP completed a survey of 19 of the 21 states with mandatory reportingsystems. Almost all of the states participating in the survey reported that facilities often citeconcerns about possible medical malpractice litigation as a factor in under reporting of adverseevents.5 While the fear of litigation is undoubtedly real, it remains an open question whetherreporting of medical errors with or without legal protection actually leads to a dramatic increase inlitigation, especially since most data are disclosed in aggregate form.6 To date no research onprecisely this question has been conducted and no empirical evidence exists to support or refutethis concern. In the aforementioned NASHP survey, when asked about any connections betweentheir mandatory reporting systems and medical liability litigation, the majority of states reportedthat there was no indication that their system had resulted in an increase in the number ofmalpractice suits. No relationship between mandatory reporting and an increase in malpracticeclaims was identified through the interviews, regardless of whether the reported data were


protected or not. This may in part be due to the fact that information is available from othersources, and egregious events are likely already known to the patients and families involved.

7For more discussion about tools and strategies that may be used to protect reporting system datafrom public disclosure, see Lynda Flowers and Trish Riley, State-based Mandatory Reporting of MedicalErrors: An Analysis of the Legal and Policy Issues (Portland, ME: National Academy for State HealthPolicy, 2001), 38.

8Anonymous reporting undercuts the goals of mandatory reporting and is probably not a desirabledesign feature because the inability to link an incident to an institution makes it impossible for stateofficials to investigate incidents, validate data, hold hospitals accountable for making improvements, orpublish hospital specific information, should they desire to do so.


STATE STRATEGIES TO PROTECT DATA AND INCREASE REPORTING

The lack of evidence of a causal relationship between mandatory reporting and medicalmalpractice notwithstanding, in order to allay fears about the use of reported data to spawnmalpractice suits and to encourage greater compliance in mandatory reporting systems, most statesprovide for comprehensive protection of serious adverse event data from compulsory disclosurethrough the legal process. The level of protection in each state varies (see Table 1) but will includeone or more of the following as methods to protect reported data:7

• System design features. The design of mandatory reporting systems can minimizeconcerns about public disclosure and legal discovery of data. De-identification of data andanonymous reporting are two system design strategies that may make data less useful fordiscovery, although these features also limit usefulness of the data for accountability andpossible consumer information.8 Public reports of medical error data can be aggregatedand de-identified.

• Exemptions from public disclosure laws. To accommodate public policy considerationsthat override this basic right of access, as in the case of reporting systems, states maycreate statutory exemptions to their public disclosure law.

• Confidentiality protections specific to reporting systems. These protections addressprovisions of legal process designed to compel disclosure of information and specificallyprotect data against subpoena, discovery, and admissibility in civil or administrativeproceedings. Protections included as an integral part of the reporting system, as opposed togeneral protections of health information, are more resistant to legal attack because thelegislative intent to protect the mandatorily reported data is clear.

• Peer review privilege. All states with the exception of New Jersey have a peer reviewprivilege under state law. Peer review is used by physicians to hold each otheraccountable for performance and to analyze errors within their institutions so as to find thecauses and avoid repetition. The peer review privilege protects peer review informationand participants from the legal process and is intended to encourage participation in thepeer review process.

9Adams v. St. Francis Regional Medical Center, 955 P.2d 1169 (1998).


The states whose mandatory reporting systems do not include protections established as anintegral part of the system may rely on existing peer review provisions that in most casespre-date the reporting system. While offering protection to documents resulting from thepeer review process, peer review protection is more vulnerable to requests for disclosurethrough the legal system. Courts have generally enforced the privilege, but there areinstances where peer review protection has been held by courts to be trumped by the rightsof individuals to information relating to a personal law suit.9 For these reasons none of therecently established reporting systems rely on existing peer review protections alone. (SeeTable 2.)

As was mentioned previously, the release of the IOM report and the latest spike in malpracticepremiums has led to both an increase in the number of state mandatory reporting systems and ademand from providers in these states for strong protections of reported data. Whether or not aconnection can be shown between reporting and an increase in litigation, the fear is real and hascontributed to the trend of more recently instituted reporting systems having comprehensivestatutory protection of data as an integral part of the system-authorizing statutes.


Table 1 Legal protections against disclosure of reported data in stateconfidentiality statutes/regulation

State CA

CO

CT

GA

FL

KS

ME

MA

MN

NV

NY

NJ2

OH

PA

RI

SC

SD

TN

TX

UT

WA

Data excluded fromdisclosure under openrecords provisions

T T T T T T T T3

T T T

Data not discoverable T T T T T T T T T T 4 T T T

Data not subject tosubpoena

T T T T T 4 T T T

Data not admissible asevidence in civilproceedings

T T T T T T T 4 T T T

Data not admissible asevidence inadministrativeproceedings (exceptdisciplinary)

T T1

T T T T T 4 T T T

Data confidential T T T T T T T T T T T T T

Peer review protectionsonly

T T T T T

Notes

Colorado: CO Revised Statutes, §25-1-124(4)(1999).

Connecticut: CT Public Act 02-125 §3(g) (19–).

Florida: FL Statutes Chapter 395.0197 (6)(c); (8)(h)(1999).

Georgia: O.C.G.A. §31-7-15/ §31-7-133 & §31-5-5. #1-Georgia protections include an exception for use ofpeer review material in licensure actions againsthospitals where the effectiveness of the peer reviewsystem is at issue (O.C.G.A. §31-7-133(b)).

Kansas: KS Statutes Annotated §65-4925 (1999).

Maine: 22 M.R.S.A. ch. 1684 §8754(3) (2002).

Minnesota: MN Statutes 2002 §145.64 (2003).

Nevada: NV Rev. Stat. Ann. 439.840 and 860 (2003).

New Jersey: #2-does not have a peer review protectionat this time.

New York: NY Civil Practice Law and Rules, art. 31(2000); NY Public Health Law, §2805-m (1999 ). #3-NY can release facility specific aggregateinformation (annualized data) under a Freedom ofInformation Act request.

Ohio: OH Statutes §3702.18.

Pennsylvania: 40 PS §311(a) and 28 PA Code §51.3(i).

Rhode Island: RI Statutes Ch 23-17-40(g); #4-reporting system incorporates peer review protectionsby reference.

South Dakota: SD Statutes CH 34-12-17 (----).

Tennessee: TN Code Ann Ch 11 §__(d)(1).

Texas: Sub Ch H §241.204.

Utah: R. 380-210-5 and R 380-200-6; UC 26-3-7.

Source: Marchev, Rosenthal, Booth, How States ReportMedical Errors to the Public: Issues and Barriers (Portland,ME: National Academy for State Health Policy, 2003).


Table 2 Trend toward greater protection

System established pre-1999

System establishedpost-1999

Comprehensive protections are specific tothe reporting system

ColoradoFloridaKansas New York

ConnecticutGeorgiaMaineMinnesotaNevadaPennsylvania*TennesseeTexas

Data received by reporting system areunprotected, or rely on peer reviewprovisions or other general protections notspecifically related to the reporting system

CaliforniaOhioMassachusettsNew JerseyRhode IslandSouth CarolinaSouth DakotaWashington

Utah**

*In Pennsylvania the original reporting system (known as the Chapter 51 system) had reporting protections that were strengthened when their new system was established in 2002.

**The Utah system was established in 2001, but the data is protected by reference to existing general protections for health data that were established prior to 1999.

Source: Marchev, Rosenthal, Booth, How States Report Medical Errors to the Public: Issues and Barriers (Portland, ME: NationalAcademy for State Health Policy, 2003).

10See R.B. Hanscom, M.Mello, R.P. Powers, et al. “Legal Liability and Protection of PatientSafety Data.” Commissioned paper for the Institute of Medicine Committee on Patient Safety DataStandards, 2003.

11However, in contrast to protections in regulation, statutory protections can be much more moredifficult to change once enacted. If states choose to protect reported data through statute, it may beadvisable to include a sunset provision to allow for an evaluation of the effectiveness of protections inincreasing reporting compliance.

12See Adams v. St. Francis Regional Medical Center, 264 Kansas 144 (1998).


INCLUDING COMPREHENSIVE PROTECTION OF DATA AS AN INTEGRALPART OF THE SYSTEM-AUTHORIZING STATUTES

Protections that are in statute and are an integral part of the reporting system will likely provide themost reliable protection.10 11 Ideally, protection provisions would be sufficient to allay fears ofthose reporting events that the adverse event information would be used against them, whileenabling states to achieve some goals of the reporting system: to spot trends, enhance patient safetythrough the identification and correction of practices that result in errors or adverse events, providevaluable information to those conducting research on patient safety and evaluation of reportingsystems, and inform consumers generally about the safety of their health care system. Thus, whilethe statutory provisions should be comprehensive and protect data from compulsory disclosure,they should also be explicit about exceptions and allowable uses of the data. Figure 1 is anexample of a statute that could be included as part of a mandatory reporting system. It stipulateshow reported data will be protected and how they will be disclosed.

The sample statutory provision begins with a clear statement of legislative intent to protect reporteddata by declaring that all information collected pursuant to the reporting system will be confidentialand privileged. Given that privileges in the law are generally not favored because they operate toimpede access to relevant information, this statement of intent can be key when a party to amalpractice suit attempts to gain access to reported data through the legal process. When balancingcompeting interests in the context of a lawsuit, a court will give significant weight to the explicitwishes of the legislature.12

Section I.A. expands upon and adds emphasis to the legislative intent that data not be released inthe context of a lawsuit, notwithstanding the interests of parties in accessing all relevantinformation, by specifying that data may not be disclosed pursuant to the usual methods that partiesemploy in an attempt to compel disclosure of information, through an open records request,subpoena, discovery, or admission into evidence in a civil, criminal, or administrative hearing.

Section I.B. addresses the concern that protections provided in the state reporting system would bewaived if the same data were reported to a different entity or for a different purpose. For example, healthcare organizations that are accredited by the Joint Commission on Accreditation ofHealthcare Organizations (JCAHO) are encouraged, but not required, to report sentinel events to


JCAHO. Section B ensures that such reporting does not waive protections under this statute.

Section I.C. assures providers that the protections offered under this statute would not preemptstronger protections under separate state or federal legislation.

Figure 1 Sample Data Protection Statute

Section I. Confidentiality. Notifications and reports of adverse events filed pursuant to [the mandatory reporting system] and all information collected or developed as a result of the filing and proceedings pertaining to the filing, regardless of format, are confidential and privileged information.

A. Privileged and confidential information under this section is not:

1. Subject to public access under [state open records act], except for data developed from the reports that do not identify or permit identification of the health care facility; 2. Subject to discovery, subpoena, or other means of legal compulsion for its release to any person or entity; or 3. Admissible as evidence in any civil, criminal, judicial, or administrative proceeding.

B. The transfer of any information to which this chapter applies by a health care facility to the division or to a national organization that accredits health care facilities may not be treated as a waiver of any privilege or protection established under this chapter or other laws of this state.

C. This section may not be construed to limit other privileges that are available under federal law or other laws of this State that provide for greater peer review or confidentiality protections than the peer review and confidentiality protections provided for in Section I.

D. For the purposes of Section I, “privileged and confidential information” does not include:

1. Any final administrative action; 2. Information independently received pursuant to a 3rd-party complaint investigation conducted pursuant to department rules

Section II. Report. The division shall develop an annual report to the Legislature, health care facilities, and the public that includes summary data of the number and types of [adverse events] of the prior calendar year by type of health care facility, rates of change and other analyses and an outline of the areas to be addressed for the upcoming year. The report shall be submitted by [date specified] each year.

Section III. Sunset Provision. A. Repeal. This title is repealed on [date specified]. B. Review of Repeal. It is the intention of the Legislature that the appropriate committees of the Legislature should review the annual reports summarizing adverse event data prior to the date of repeal described in subsection A in order to determine whether it is appropriate to extend the authorities provided under this title for a period beyond such date.

13While most states provide for this dual use, Utah is an exception. The state receives reports oferrors into a separate entity and does not share error information with the regulatory branch.

14In all states, the public can access statements of deficiencies issued as the result of a survey orcomplaint investigation conducted as part of the state licensing and/or Federal certification process. (TheCenters for Medicare and Medicaid Services State Operations Manual, Section 3314 and 42 CFR431.115.)


The IOM envisioned mandatory systems that would hold providers accountable and keep the publicinformed of the safety of the healthcare system. Protecting data from compulsory disclosure for usein a malpractice case does not preclude a state from using the same data to hold providersaccountable and/or to analyze sources and causes of errors. In many of the states with mandatoryreporting systems, errors or adverse events are reported to the regulatory branch that may takecorrective action when necessary. Even in states such as Utah that do not share data with theregulatory branch, the reporting system may also provide a mechanism of accountability. In thecase of Utah, the state division that receives error reports also monitors plans of correction and willintervene if a provider has not moved assertively to correct a condition or situation that is causingerrors. Section D of the sample statute ensures that states with systems that simultaneously use datafor accountability in the licensure and certification process and for data analysis and errorprevention are free to disclose the results of their investigations and any action taken pursuant to theinvestigation.13 14

Regarding a principal goal of mandatory reporting as envisioned by the IOM, public access toinformation, most states that release error data do so in aggregate and de-identified form. While de-identified data limit how useful data will be, for example, to consumers choosing a hospital,aggregate data reports do serve to alert both state legislatures and the public at large to trends andproblem areas in the healthcare system. A consumer who is aware of what errors are occurring andunder what circumstances will be better prepared to ask their provider appropriate questions. Section II of the sample statute requires that data be released to the legislature and public andelucidates the manner of their release.

The sunset clause contained in Section III of the sample statute gives state legislatures theopportunity to study the effectiveness of data protections in increasing reporting compliance and, ifshown to be ineffective, the ability to employ other strategies in the efforts to boost compliance andenhance healthcare safety.

15For further discussion, see M. Marchev, The Medical Malpractice Insurance Crisis:Opportunity for Sate Action (Portland, ME: National Academy for State Health Policy, 2002).

16The American Medical Association has designated medical liability reform as its number onepriority. See the AMA web site: http://www.ama-assn.org. See also Appendix A for a summary of recentlegislative activity initiating tort reform proposals.


TORT REFORM

In addition to creating strong protections for reported medical error data, states are attempting toaddress the issue of the medical malpractice insurance crisis through selected tort reforms. Tortreform in the context of medical malpractice is essentially an attempt to control the frequency andseverity of claims, with the goal of reducing the growth of malpractice insurance premiums.15 There has been a vigorous campaign in recent years by providers and insurance companies urgingstate legislatures to institute tort reform in general and damage caps in particular.16 (See AppendixB for recent state tort reform legislative efforts.) The emphasis on caps and other measuresdesigned to restrict the amounts of damage awards, such as abolition of the collateral source ruleand joint and several liability, is aimed at increasing the predictability of awards and limiting theliability exposure of the insurance companies, so as to stabilize malpractice insurance premiums. (See Appendix A.) However, this strategy is not designed either to increase reporting complianceor reduce the incidence of medical errors, and no evidence exists to indicate that it would do eitherone.)

The current direction of tort reform – which effectively restricts access to the courts – coupled withthe trend to protect medical error data have raised concerns that consumer access to information isbeing blocked. In spite of the many problems associated with malpractice litigation, the system ispotentially a very rich source of error data which could be used to improve the quality and safety ofhealth care. With all avenues to information being restricted, consumers and injured patients arelikely to become increasingly dissatisfied with this trend and may become more assertive indemanding the disclosure of medical error data.

17Institute of Medicine, Fostering Rapid Advances in Health Care: Learning from SystemDemonstrations (2002).


Beyond Tort Reform: Alternative Liability Demonstration ProjectsProposed by IOM

In an attempt to address the problems with the current tort system as outlined above, the Institute ofMedicine has called for a series of demonstrations to test no-fault, non-judicial systems for medicalmalpractice.17 The IOM suggests that four or five states create injury compensation systems outsideof the courtroom that are patient-centered and focused on safety. These systems would setreasonable payments for avoidable injuries and provide fair, timely compensation and apologies toa greater number of patients, while stabilizing the malpractice insurance market by limiting healthcare providers' financial exposure. The projects provide incentives for care providers to developprocesses for reporting and analyzing medical mistakes and to involve patients in efforts to reduceerrors.

Participating states would replace the existing tort system with one of two proposed administrativemodels:

! Provider-based early payment: Under this approach, the federal government wouldprovide reinsurance on a shared-cost basis to self-insured or experience-rated providergroups that agree to identify and promptly compensate patients for avoidable injuries. States would prospectively set limits on non-economic damages, including pain andsuffering, for identifiable classes of avoidable injuries.

! Statewide administrative resolution: Under this approach, states would grant all healthcare providers immunity from most tort liability in exchange for mandatory participation ina state-sponsored administrative system to compensate patients for avoidable injuries.

The IOM approach involves explicit trade-offs for both providers and consumers. In thesedemonstration projects, consumers would trade jury trials for faster, fairer and surer compensation.Providers would agree to mandatory reporting and prompt payment in return for reasonable limitson financial exposure.

Compensation would be based on “avoidability” of errors instead of the currently required standardof “negligence.” Awards would be preset for specific categories of errors, providing the stabilityneeded to contain malpractice premiums more fairly than the arbitrary caps on non-economicdamages that are commonly proposed. The IOM approach would replace negative incentives thatarguably encourage providers to hide errors and practice defensive medicine with positiveincentives to report and reduce errors through evidence-based methods. This could be a veryimportant step toward creating a “just culture” in which the system could focus on enhancingquality and safety rather than avoiding punishment under the system of tort liability.

18Marchev, Rosenthal, and Booth, 20.


CONCLUSION

In the ongoing effort of states to guarantee safer health care, the systems designed to investigateand remedy errors (mandatory reporting systems) and to hold providers accountable and act as adeterrence to future errors (the tort system) appear, at times, to work at cross purposes. Mandatoryreporting, as envisioned by the IOM, encourages a systems approach and looks to bring mistakesout in the open in order to fix system flaws and thus avoid future lapses. The tort system blames anindividual for his wrongdoing and through punishment looks to deter future errors. Bothapproaches can be said to share the goal of safer health care delivery, but in the currentenvironment of mistrust and fear, the balance may shift temporarily toward more protection of dataat the expense of open and public airing of errors.

It is not at all certain that stronger protection of data will lead to an increase in reporting. All stateswith mandatory systems that responded to the NASHP survey cited under reporting as a problem,even those with very comprehensive protections of reported data in place.18 It may well be that thecauses of under reporting are broader than fear of malpractice and are linked to a general providerreluctance to report errors for a wide variety of concerns, including a dislike of regulation, badpublicity, loss of market share, etc. Nevertheless, until the current barriers to reporting areovercome, including the fear of malpractice litigation, states are choosing to protect data from usein malpractice cases.

If the trend toward strong comprehensive protection leads to a higher rate of reporting compliance,states will be in a much better position to make needed changes in the health care system toenhance patient safety and to provide useful information to the public based on full reporting. Asproviders receive valuable feedback from the reporting system and see favorable results, reluctanceand fear of reporting may diminish.

In contrast, if providers continue to under report even with strong protections in place, the stateswill be obliged to reevaluate the strategies employed to encourage providers to report errors. Asstates introduce reporting systems with strong statutory protections, they may want to keep in mindthat statutory provisions, especially those with powerful stakeholders supporting them, are difficultto repeal. Thus, states may want to position themselves advantageously for future evaluation andadjustments by 1) providing for research to examine both the reporting/malpractice and theprotection/reporting links, and 2) including sunset provisions in the implementing statutes.

Either way, it should not be forgotten that consumers have a right to safe health care and have aright to fair compensation if they are injured in the healthcare system. Any reporting system shouldact ultimately to the public advantage. Protecting data may serve an interim purpose of increasingreporting and creating a safer health care system, but it also impinges on the rights of health careconsumers to information. If it is shown in the future that protecting data does not increasereporting, the problems with the malpractice system, in the absence of other valid reasons to


withhold information, should not be used over the long term to deny consumers access to safetyinformation.


Appendix ASelected State Tort Reform Measures


Selected State Tort Reform Measures (designed to limit amount of damage award)

Tort Reform Measure States currently with reform

Damage caps

Damages in liability cases are classified as economic and non-economic. Economic damages include actual monetary losses due to negligence such asmedical bills and loss of future earnings. Non-economic damages refer tomoney awarded to a victim for unquantifiable losses such as pain and sufferingor loss of consortium. Many states have put a limit on non-economic damages.

Punitive damages may also be awarded with the intention of punishing anegregious offender.

A few states have limited the total amount of possible damage award.

AK, CA, CO, FL, GA, HI, ID, IN,KS, LA, ME, MD, MA, MI, MO,MT, NE, NV, NJ, NM, ND, OH,OK, PA, SD, TX, UT, VA, WV, WI,

Abolition of the collateral source rule

The collateral source rule prohibits juries from hearing evidence that claimantshave been compensated from other sources (e.g., medical insurance) for theirinjuries.

AL, AK, AZ, CA, CO, CT, DE, FL,ID, IL, IN, IA, ME, MA, MI, MN,MT, NE, NV, NJ, NY, ND, OH,OK, OR, PA, RI, SD, TN, UT, WA,WV, WI

Abolition of joint and several liability

Joint and several liability is designed to protect victims in cases where morethan one party has been found liable or responsible for the injuries inflicted byholding that each is completely responsible for the damages if any other partyfails to pay its portion. This is designed to ensure that an injured person willreceive his or her entire damage award, i.e., be "made whole," even if one ormore of the responsible parties fails to pay. The counter argument is that thisrule encourages plaintiffs to sue hospitals or doctors with "deep pockets" orsubstantial insurance policies. The alternative is comparative or contributorynegligence under which rule a jury is asked to apportion responsibility, eachdefendant paying his or her share of the damages.

AK, AZ, AR, CA, CO, CT, FL (fornon-economic), GA (whenclaimant has some fault), HI, ID,IA, KS, KY (up to jury), LA, MN,MS (for non-economic), MT, NE,NV, NH, NJ, NM, NY, ND, OH,OR, PA, TN, TX, UT, WA (whenclaimant has some fault), WY

Source: Advocacy Resource Center of the American Medical Association, “State Laws Chart I: LiabilityReforms,” June 2003 (http://www.ama-assn.org/ama1/pub/upload/mm/378/junestatelawschart1.doc).


Appendix BRecent State Malpractice Legislative Activity re: Tort Reform

(1999-2003)


Recent State Malpractice Legislative Activity re: Tort Reform (1999-2003)

/Legislation enacted °Legislation introduced in 2003 but not enacted

Limits on punitive damages Limits on non-economic damages Joint & several liabilitycollateral source rule

AL /1999 (3x compensatory or$500,000, whichever is greater)

°($250,000 in cases against nursinghomes)

AR /2003 (greater of $250,000 or 3Xcompensatory not to exceed $1min cases against nursing homes)

/2003 (modified repeal of jointand several liability with formulafor determining share of liability)

CA

CO °($250,000)

CT °($250,000)

FL /1999 (greater of 3x comp or$500,000)

/2003 ($500,000/physician up tomax of $1m; $750,000/facility up tomax of $1.5m; in cases of “severemalpractice” caps can increase to$1m/physician and $1.5m/facility)

/1999 (multi-tier approach forapplying limits on rule of joint andseveral liability)

GA °($250,000)

ID /2003 (greater of 3x comp or$250,000)

IL °(allow physicians to contract withpatients for cap of $500,000)

MA °($500,000)

MN /2003 (joint and several liabilitydoes not apply to defendantsfound to be less than 50% at fault)

MS /2002 (cap of $500,000 thru 2011,then raised to $750,000 until 2017,then raise to $1m)

/2002 (replace rule of joint andseveral liability with rule ofproportionate liability in non-economic damages)

MT /2003 (lesser of $10m or 3% ofdefendant’s worth)

MO °(greater of 5x compensatory or$500,000)

°($350,000 - passed by legislatureand vetoed by Gov. Bob Holden))

NV /2002 (cap of $350,000 except incases of “gross malpractice” orjudicial determination that awardshould exceed cap) °(legislation introduced to eliminateabove exceptions)

/2002 (barred application of ruleof joint and several liability inrecovery of non-economicdamages in medical liabilityclaims)


Limits on punitive damages Limits on non-economic damages Joint & Several LiabilityCollateral Source Rule

NJ °($300,000 cap/physician plusadditional $700,000 from state fund)

NY °(increase cap to $500,000)

NC °($250,000)

OH /2003 ($350,000) /2003 (awards in medicalmalpractice cases shall be offsetby collateral source payments)

OK /2003 (evidence of collateralsource payments admissible)

PA /2002 (except for intentionalmisconduct, punitive damageslimited to 200% of compensatorydamages for individual physician.25% of damages go to state fundto pay awards in excess of privatemalpractice coverage)

/2002 (barred rule of joint andseveral liability except 1) in casesof intentional tort or 2) whendefendant has been found morethan 60% liable; barred claimantfrom recovering past medicalexpenses or past earnings toextent loss covered by anothersource prior to trial)

SC °($250,000)

TN °($250,000)

TX /2003 (requires a unanimous juryverdict to award punitivedamages)

/2003 ($250,000 total forpractitioners + $250,000 per-facilityup to $500,000 = $750,000 total fornon-economic damages) (Votersapproved amendment to TXConstitution to allow caps onmalpractice awards)

UT /1999 (clarified 1986 statute thatabolished joint and several liabilityto address the Utah SupremeCourt decision in Field v. TheBoyer Company)

WA °($350,000) °(eliminate joint and severalliability)

WV /2003 ($250,000 - $500,000depending on severity of injury)

/2003 (modified rule in medicalmalpractice cases so that liabilityis several among defendants whogo to trial)

Documents

Medical Malpractice and Medical Error Disclosure · medical malpractice, whether tort law does either effectively.2 Most patients injured through medical negligence do not bring malpractice