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Special Communication |

The Medical Liability Climate and Prospects for Reform

Michelle M. Mello, JD, PhD, MPhil1,2; David M. Studdert, LLB, ScD, MPH1,2; Allen Kachalia, MD, JD3
[+] Author Affiliations
1Stanford Law School, Stanford, California
2Stanford University School of Medicine, Stanford, California
3Brigham and Women’s Hospital, Harvard Medical School, Boston, Massachusetts
JAMA. 2014;312(20):2146-2155. doi:10.1001/jama.2014.10705.
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For many physicians, the prospect of being sued for medical malpractice is a singularly disturbing aspect of modern clinical practice. State legislatures have enacted tort reforms, such as caps on damages, in an effort to reduce the volume and costs of malpractice litigation. Attempts to introduce similar traditional reform measures at the federal level have so far failed. Much less prominent, but potentially more important, are proposed alternative approaches for resolving medical injuries; a number of these efforts are currently being tested in federally sponsored demonstration projects. These nontraditional reforms have considerable promise for addressing some of the system’s most challenging issues, including high costs and barriers to accessing compensation. In this Special Communication, we review recent national trends in medical liability claims and costs, which indicate a sharp reduction in the rate of paid claims and flat or declining levels in compensation payments and liability insurance costs over the last 7 to 10 years. We discuss a number of nontraditional reform approaches—communication-and-resolution programs, presuit notification and apology laws, safe harbor legislation, judge-directed negotiation, and administrative compensation systems—and we conclude by describing several forces likely to shape change in the medical liability environment over the next decade.

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Figure 2.
Indemnity Amounts in Paid Claims Against Doctors of Medicine and Doctors of Osteopathy, 1994-2013a

Based on National Practitioner Data Bank data.

aBased on analysis of 263 099 reported payments. All monetary values are shown in 2013 dollars.

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Figure 3.
Liability Insurance Rates Charged to General Surgeons, Internal Medicine Physicians, and Obstetrician-Gynecologists in 5 Locations, 2004-2013

Medical Liability Monitor Annual Rate Survey data. Rates shown are in 2013 dollars and indicate those charged by the dominant insurer in the local market. Dashed line between 2009 and 2010 in California indicates the shift from Los Angeles and Orange counties (2004-2009) to Los Angeles, Orange, Kern, and Ventura counties (2010-2013). Blue segment on each y-axis corresponds to the range $0 to $50 000.

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Figure 1.
Rates of Paid Medical Malpractice Claims Against Doctors of Medicine and Doctors of Osteopathy, 1994-2013

Authors’ analysis of National Practitioner Data Bank data. Because data on the number of physicians for 2013 are not yet available, the 2013 data shown are extrapolated from 2012.

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