Legislation Threatens Decades of Medical Tort Reforms
If 1-800-4-MED-MAL sounds like a personal injury firm advertisement, think again. But if proponents of a radical new alternative medical liability system get their way, 1-800-4-MED-MAL could be an avenue for turning every persistent migraine, bout of acute pain and post-operative bruise into cash payments.
This radicalized approach – called the Patients’ Compensation System (PCS) – would abolish a physicians’ right to trial by jury and undo decades of tort reforms championed by the Medical Association, laws that foster a stable liability environment in Alabama and laws which must be defended from personal injury lawyer attacks each year. Proponents of the PCS want Alabama physicians to trade existing, proven protections from trial lawyer shenanigans for the false hope of an untested, unrealistic and radical approach to medical liability.
Let’s examine arguments by proponents of PCS legislation one by one.
Proponents Say PCS Will Be Good for Physicians
While supporters claim the PCS would free physicians from burdens of the civil justice system, the opposite is true. The Medical Association won numerous hard-fought battles with personal injury lawyers since the 1980s in order to bring stability to Alabama’s medical liability environment. Maintaining that stability can only be achieved through a vigilant defense at the Legislature.
If it became law, the PCS would levy an annual tax on physicians to fund a new state government agency to handle all claims of physical injury or death allegedly at the hands of M.D.s and D.O.s. The PCS would be mandatory, with no option for a jury trial. The PCS would have authority to investigate, determine fault and award damages. Instead of a plaintiff hiring an attorney to file suit, each claim under the PCS would be initiated by dialing a 24-hour hotline.
The PCS would not govern allegations filed against a hospital though, meaning a physician could still be party to a suit involving an institution even with the PCS in place. Unlike a professional liability policy, the costs for defense counsel would not be included in the annual payment to the PCS. The committees reviewing PCS claims would be largely political appointees, meaning a physician’s fate could hinge on who’s in office at the time a claim is made. If the PCS found wrongdoing by a physician and compensated a claimant, it would be reported to the National Practitioner Databank. With the bar for entry lowered to the level of a phone call, a “woodwork effect” as word spreads about the PCS is an almost certainty. With the subsequent spike in payouts, Alabama physicians could see reports for minor injuries to the National Practitioner Databank increase as exponentially as their taxes to fund the PCS.
Proponents Claim PCS Will Be Good for Patients
Those pushing the PCS say the current system doesn’t adequately compensate injured patients, and those compensated wait too long for justice. Few physicians who’ve been sued would argue the civil justice process is a short one, but that is indicative of long dockets that are the product of an overly-litigious culture.
The practice of medicine is just that; a practice, with few certainties. Most patient injuries are no one’s specific fault. In a minority of situations, the opposite is true and those injured should be able to seek recourse. But under the bureaucrat-run PCS, the number of claims paid for even minor injuries could increase sharply, quickly depleting the balance of available funds through thousands of small payouts, funds that should be reserved for the aforementioned minority of situations of serious physical injuries or death.
Once the funds from the PCS physician tax dries up each year, no further claims can be paid, even those already filed but not completed. Given that, instances of serious physical injury would fare better in the court system. The PCS proponents also promise a dramatic reduction in the length of time between injury and award. That’s difficult to believe as few if any government programs have actually improved efficiency for those utilizing them.
Proponents Say PCS Will Reduce “Defensive Medicine”
Promised as a way to reduce unnecessary care and thereby shrink Medicaid expenses by giving physicians liability comfort, PCS supporters cling to the flawed premise physicians base their medical decisions on criteria other than established standards and what’s best for the patient. Statements to the contrary are not only insulting to most physicians, they’re false, as anyone intentionally billing unnecessary services would be committing fraud. Whether under the civil justice system or the PCS, standards of care will still exist. And, because all awards for injury are reported to the National Practitioner Databank, the reporting of thousands of minor injury awards under the PCS might actually encourage additional testing and procedures, creating the opposite atmosphere PCS proponents claim their system will eliminate.
Proponents Say PCS Will Cut Health Care Costs, Especially in Medicaid
Also proposed as a cost savings for Alabama Medicaid via anticipated reduction of alleged unnecessary care, PCS supporters claim Alabama physicians order more than $1 billion worth of “defensive medicine” for fear of being sued. They claim the PCS, if implemented, could substantially slash the cost to Medicaid alone by hundreds of millions of dollars. As explained above, the myth of “defensive medicine” doesn’t hold up. How could a radical new system that pays out substantially more claims for injuries contain even its own expenditures, much less curb the growth in health care costs? The PCS will create a “woodwork effect” expected to increase the cost each year, leaving physicians burdened with higher taxes to fund the unrestrained and irresponsible growth.Conclusion
The PCS is an expansion of big government-funded on physicians’ backs that will undo decades of significant tort reforms. With uncertainty already surrounding the future of the state’s Medicaid program, destroying Alabama’s medical liability environment could push physicians into early retirement or send them to states with more stable liability atmospheres. The PCS legislation and its empty promises should be cast aside in favor of meaningful civil justice reforms that solve problems instead of creating them. The PCS is indeed an answer in search of a question, and one that’s bad for patients, bad for physicians and wrong for Alabama.