EMBARGOED for release
Wednesday, July 7, 2004, 12:01 a.m.

For More Information, Contact:
Linda Loranger, Janet Firshein, or Kari Root,

Jon Gardner at Health Affairs, 301-347-3930


Popular Malpractice Reform Measure Embraced by States, Bush Administration,
Is Not Fairly Compensating Those with Grave Injuries

(Bethesda, MD) – With about two-thirds of the United States facing what some experts describe as a medical malpractice crisis, a pair of studies in the July/August issue of the journal Health Affairs show how liability concerns could be dampening physician satisfaction and hurting patient care and limiting patients’ ability to be fairly compensated for their pain and suffering.

One study, funded by the Pew Charitable Trusts Project on Medical Liability in Pennsylvania, found widespread discontent among physicians in that state, where several insurers have exited the market and malpractice premiums have increased dramatically. Nearly 40 percent of the 824 Pennsylvania specialists surveyed in 2003 said that they were dissatisfied with the practice of medicine. Obstetrician/gynecologists and solo practitioners were more likely to report dissatisfaction than emergency medicine physicians, radiologists, and specialists practicing in a group. The rate of dissatisfaction among high-risk specialists surveyed was twice as high as the rates among comparable specialists in other states from a similar study conducted in 1999 and 2001.

“Physicians are obviously unhappy about the medical malpractice situation, but I think we showed that the current crisis in Pennsylvania is having a palpable impact on the psyche of physicians practicing there,” says study co-author Michelle Mello, assistant professor of health policy and law at the Harvard School of Public Health (HSPH). Mello notes that physician unhappiness is often discounted as self-serving. However, she says, “career dissatisfaction deserves attention if it has damaging consequences for patients.”

Study authors, from HSPH, Columbia Law School, and Harris Interactive, note that a growing body of research has identified links between physician satisfaction and high-quality care. For example, studies have shown that patients of physicians with higher levels of job satisfaction are more likely to adhere to medical treatments, and satisfied physicians tend to be more attentive to patients. Physicians who are dissatisfied are more likely to engage in riskier prescribing practices, disrupt continuity of care, and practice defensive medicine, according to the study.

Most physicians surveyed denied that malpractice concerns made them less candid with patients but a “sizable minority” felt that they did. Physicians who had been dropped by an insurer, been sued in the past three years, or faced high premiums were much more likely to report this. More than 90 percent of specialists also said that the malpractice system limits their ability to provide the highest-quality care. Specialists practicing in high-risk counties and those with high insurance premiums were much more likely to perceive that it limits quality “a great deal.”

Another study from the Harvard School of Public Health, authored by David Studdert, associate professor of health policy and law, Mello, and Y. Tony Yang, examined the merits of one of the more popular approaches to limiting malpractice awards. Their study of malpractice jury verdicts in California found strong evidence that imposing a cap on non-economic damages results in inequitable payouts across different types of injuries.

The authors analyzed a sample of jury verdicts in California that were subjected to the state’s $250,000 cap on non-economic damages. They found that reductions imposed on grave injuries were seven times larger than those for minor injuries. People suffering from pain and disfigurement had particularly large reductions in their awards.

Currently, 21 states cap damages for non-economic losses in medical practice cases. Generally, the ceilings range from $250,000 to $750,000. Six states cap total damages. Many malpractice reform advocates support capping awards for pain and suffering, including President Bush.

But the authors say that this approach has proved inequitable. “A flat dollar cap is unfair,” says Studdert. “When you look at the verdicts that are affected by caps, what you see is a really large number of case that involve major injury.” If policymakers pursue caps as a way to limit malpractice awards, Studdert says, “they ought to try to be more creative about the kinds of caps that they are enacting.”

The authors recommend that use of a schedule or sliding scale for non-economic damages would be more equitable. “Under this approach, the maximum award in each severity bracket would be capped but at a level more commensurate with the severity of injury than a flat cap permits,” the study says, adding that it allows such awards to vary by severity of injury and also by the plaintiff’s age. The authors warn that as the malpractice crisis worsens, “decisions to implement caps should be made with an awareness that they are likely to exacerbate existing problems of fairness in compensation.”

Health Affairs, published by Project HOPE, is a bimonthly, multidisciplinary journal devoted to publishing the leading edge in health policy thought and research. Copies of the July/August issue will be provided free to interested members of the press. Address inquiries to Jon Gardner at Health Affairs at 301-347-3930, or via e-mail, press@healthaffairs.org. Selected articles from the July/August issue are available free on the journal’s Web site, www.healthaffairs.org.


©2004 Project HOPE–The People-to-People Health Foundation, Inc.