When it comes to medical liability laws and culture, where you live matters. Depending on your state, your liability and premiums might be sky high or totally reasonable. Find out how your state stacks up against the other 49.
Do you think our medical liability system has been broken for a while? If so, you’re not alone. And now, with the recent enactment of the Affordable Care Act, our resources are more limited, our decisions more scrutinized, and we’re going to have to do more with less. The current medical liability system is simply not compatible with government-run health care rationing. We are now expected to discharge more and test less; yet, tort reform is not part of the ObamaCare equation.
So what’s the solution? If you examine medical liability at the state level, you’ll find that some systems are working well, while others are hardly working at all.
Here, in Texas, things are working out big-time, thank you for asking. Thanks to the passage of landmark malpractice reforms in 2003, claims and lawsuits in this state have been cut in half. Liability carriers have slashed their rates, doctors have flocked to the state, access to care has improved and physician morale has soared . But questions remain:
• Does this new system work for patients?
• Have these new laws decreased the practice of defensive medicine and, in turn, decreased health care costs?
• Are patients who have been genuine victims of malpractice in Texas receiving the compensation they deserve?
And, on a larger scale, why does medical liability vary so much state to state? The answer is complicated. Each state’s medical liability system represents a delicate and convoluted interplay between physicians, lawmakers, and patients. Additional factors include supply and demand (how many attorneys are in the state? How easy is it to recruit doctors to the state?), political history (red vs. blue), and the litigiousness of the populace (is suing a physician viewed as a sacrosanct right?). And of course, in the end, it’s all about money.
I have now experienced three vastly different medical liability environments as my medical career has taken me from Chicago to South Bend and now Dallas, and I have become increasingly fascinated with this topic. In the last two years, on behalf of AAEM’s Legal Committee, I set out on a quest to fully understand the ins and outs of our medical liability labyrinth. My ‘modest” goal was to construct the most accurate and comprehensive medical liability database ever for emergency physicians. You’ll find the findings summarized here. A detailed report for all 50 states was published in AAEM’s Common Sense newsletter. These state by state summaries have generated a multitude of insightful questions and inquiries from friends, colleagues, and Common Sense readers. Here are the top 10 questions and answers.
1. What constitutes a good liability environment for emergency physicians?
Although a formal definition does not exist, the best liability environment for an emergency physician is one in which litigation and malpractice costs are both kept to a reasonable minimum. In an ideal environment, frivolous suits are minimal and meritorious cases are quickly identified. If this happens, the stress and cost associated with litigation is minimized, and patients who are truly victims of negligence are compensated fairly and in a timely manner with reasonable limits. Secondary benefits include decreased costs in the form of reduced litigation and annual premiums, costs previously absorbed by physicians but sometimes passed on to the patients and a reduction in defensive medicine, whose costs had been passed on to taxpayers and patients. Additional secondary benefits include improved quality of life for physicians as a result of decreased litigation stress, more money in their pockets, heightened morale, and the ability to practice good medicine without being defensive. Finally, patient safety is arguably improved as states have an easier time recruiting and retaining doctors, which, in turn, equals greater access to physicians, especially those performing high-risk procedures.
Theoretically, states that have enacted special laws to reduce unreasonable litigation (expert witness reform, case certification requirements, and medical review panels) and curb excessive rewards (damage caps) should have the most favorable environments, with physicians paying the lowest annual premiums. However, this is not always the case. The relationships between tort reform, malpractice costs, and medical liability environment favorability are complex and nonlinear. Sometimes, a state’s legal culture can overwhelm tort reform laws favoring physicians or can protect physicians despite the absence of meaningful laws.
2. The best, the worst and the watch list
The best states are California, Colorado, Kansas, and Texas. All four of these states have enacted a reasonable cap ($250k–$300k) on non-economic damages . Litigation in these states has markedly decreased over time and annual malpractice premiums for physicians remain low [12,13,31,35]. Following close behind are Indiana (which long ago implemented a $1.25 million cap on total damages and a pre-litigation screening panel process) and Alaska, North Carolina, North Dakota, and South Dakota (which have all implemented caps on non-economic damages of $500k or lower) . The majority of these states have some of the lowest medical malpractice payouts per capita .
The worst states include Illinois and a cluster of states on the East Coast: New York, DC, Pennsylvania, New Jersey, and Delaware. In all of these states, litigation is frequent and malpractice premiums for physicians are debilitating (OBGYNs and surgeons in New York City and Philadelphia pay north of $100,000 per year) . These states all have some of the highest malpractice payouts per capita and meaningful tort reform is non-existent [3,36].
3. Which states have seen the most change in recent years and why?
Texas: The Lone Star state has become the poster child for tort reform. Litigation, paid claims, and premiums have been slashed in half after sweeping reforms were passed in 2003. Applications for Texas licenses have surged and the malpractice payout per capita (at $3.03) is now the lowest in the country .
Ohio: Litigation has dropped 41% statewide over the years following the enactment of transformative reforms in 2004 .
Pennsylvania: Reforms were passed in 2003, including (1) a case certification requirement, and (2) venue reform . In the last 10 years, medical malpractice case filings have decreased 44% in the state (and they’re down 65% in Philadelphia) .
Mississippi: Since passing strong reforms in 2004 (a hard $500,000 cap on non-economic damages and a case certification requirement), liability insurance costs have dropped nearly 50 percent and the number of lawsuits have fallen 70 percent .
North Carolina: The state passed vigorous reforms in 2011 (a $500,000 cap on non-economic damages and an enhanced burden of proof for EMTALA providers) . North Carolina’s per capita malpractice payout ($4.55 malpractice dollars per person) is now the seventh lowest in the nation .
4. Which reforms have had the greatest impact?
There is significant data to support the efficacy of a hard cap on non-economic damages [76,77,78]. Twenty-five states currently implement a cap on non-economic damages (although Florida’s cap is in the process of being overturned) . The 250k cap is most closely tied to good liability environments (Texas, Alaska, California, Kansas). The benefits of this cap are significantly diminished if it allows for too many exceptions (e.g. “does not apply in cases of debilitating injury”), if it is adjusted annually for inflation (Maryland) , if it is increased in cases with multiple defendants (South Carolina)  or if it is simply too high to make an impact (Tennessee).
Twenty-four states are currently implementing a case certification mandate8, which requires the plaintiff to attach a signed statement from a qualified expert (typically within 60 days of the filing). This has been credited for reducing the volume of frivolous lawsuits in many states, such as Pennsylvania  and Tennessee.
Nineteen states currently implement a pre-litigation panel review process (mandatory in 14 states, optional in 5). Based on my own experiences as a physician in Indiana (where I sat on both sides of the panel), this law is effective in weeding out frivolous claims and reducing practitioner fear (knowing that a bad outcome in which no error was made will be dismissed by the panel). Most states still allow cases to move forward in the courts despite a panel ruling in favor of the defendant, and in other states, the panel findings are not admissible in court. Criticisms include the length of time that it takes for the panel to come to a decision (in Indiana, the average is 4 years) [23,24]. This negatively impacts both patients who have been victims of negligence and deserve timely compensation as well as physicians who have been wrongly accused and continue to suffer from litigation stress.
5. Which reforms have had the least impact?
While Apology Laws are well meaning, their impact is unclear.
Alaska is the only state to have a “Loser Pays” law in the books. The rule is applied to no more than 20% of the winner’s fees and is actually collected in a minority of cases .
Five states currently implement a cap on total damages. In states such as Virginia, the $2 million cap (increased annually) is simply too high to be effective. In other states (such as Nebraska, which has higher than average awards/settlements), plaintiff attorneys seem to push awards for pain and suffering closer to the $1.75 million total cap .
While expert witness reform represents a vital piece of the tort reform package, I am amazed at how many states get it wrong. Ideally, an expert witness is a physician in active clinical practice, board certified in the same specialty as the defendant, and actively practicing in the same state.
Very few states require all of these things, and what is even more appalling are the loopholes contained in these laws. For example, Pennsylvania law reads, “expert testimony is required to establish the requisite standard of care, unless negligence is obvious to a lay person” and “the court can waive this requirement if the expert has sufficient training, experience, or knowledge as a result of active practice or teaching within five years prior to the incident” . This opens the door for any doc with a pulse to testify.
To quote my AAEM colleague Andy Walker, there are three types of hostile plaintiff’s experts who testify against emergency physicians: (1) the prostitute, (2) the non-EP specialist who has no idea what he’s talking about, and (3) the well meaning EP who is dismantling our specialty because he doesn’t truly understand “negligence” and “standard of care.” The third expert is impossible to police even with fabulous expert witness requirements . I would love to see a law that requires expert testimony to be reviewed by the respective specialty’s professional organization before being used in court. Or, to prevent some experts from selling their souls, cap expert witness fees at 1.5 times the hourly rate for the specialty’s clinical work.
6. Are there laws specifically protecting EPs and others bound by EMTALA to provide care in the emergency setting? Have these reforms worked?
Eight states have passed laws that specifically protect emergency physicians as well as other specialists taking call and bound by EMTALA to provide care in an emergency setting.
These laws include (1) an enhanced burden of proof (plaintiffs must prove gross negligence by clear and convincing evidence) in Georgia, South Carolina, North Carolina, Utah, West Virginia, and Texas; and (2) reduced caps on non-economic damages in Florida and Nevada [8,35]. All of these laws have been passed over the past ten years, so it is simply too soon to deter- mine their true efficacy. In Utah, the law does not apply if the physician has access to the patient’s medical records .
Unfortunately, EPs in Florida can never rest easy. Florida will always be a litigious state, and trial attorneys will continue to overturn laws protecting physicians. In Georgia, I am told by EPs working in the trenches that these laws have improved their quality of life and their ability to recruit and retain physicians. And, the practice of defensive medicine has decreased to some degree. I do know of one case in which this Georgia law helped a well meaning EP , but the integrity of this law is being vigorously challenged at this time (Johnson vs. Omondi)[70,73,75].
7. Rationalizing the weak correlation between malpractice premium costs and tort reform
Intuitively, states with tort reform should see a decrease in litigation and ultimately a decrease in malpractice premiums. However, this relationship is far from linear. A state’s litigation culture evolves over hundreds of years and becomes firmly established. States as a whole are slow to change and with many of these reforms being very new, it may take another hundred years for these laws to make an impact. In simpler terms, if lawyers are accustomed to aggressively pursuing cases and the public is accustomed to suing, this may go on for years regardless of the obstacles placed in their way. In some cases, litigation actually has decreased, but because these reforms are so new, these premium dollars are being pushed towards periodic settlements for cases that were settled ten years prior. This hypothesis would apply to states with good reform and relatively high premiums (such as Ohio, Georgia, Florida, Utah, West Virginia, and Massachusetts) .
If litigation really has decreased, and previous settlements have been paid, and premiums remain high, then we need to point our finger at the companies insuring physicians making an excessive profit. Something doesn’t add up. This hypothesis may be applicable to the state of Nevada, which has great reform (on paper), high malpractice premiums (around $47,250 average annually, much higher in and around Las Vegas) , and one of the lowest payouts per capita (suggesting low litigation and low settlements/awards throughout the state) .
8. What is more powerful, state laws or state culture?
The answer, without a doubt, is state culture. Minnesota is devoid of tort reform, yet, physicians pay some of the lowest malpractice premiums in the country. I once asked a Minneapolis colleague why this is so, and he replied, “People here don’t sue. Some call it Minnesota Nice.”  On the other hand, while Florida has repeatedly tried to improve its medical liability system with reforms such as caps and expert witness reform, the state’s doctors actually pay some of the highest premiums in the country. It all boils down to state culture.
When a region, such as South Florida, evolves in this way, it is practically impossible to roll it back. The Florida trial lawyer lobby is simply too powerful, and any laws serving to protect physicians will be perpetually under fire.
The average malpractice premium in Minnesota is estimated at $8,500 while the average premium in Florida is estimated at $79,000! Why such an astronomical difference? Do Florida doctors make more mistakes than those in Minnesota? Of course not. In fact, Florida physicians are probably less risk tolerant and pressured to practice medicine more defensively. There are approximately 4,000 emergency physicians in Florida. If they were to convert their insurance to a Minnesota carrier, they would save $70,000 per doc for a total of $280 million! Where does this $280 million come from and where does it go? EPs in both states are paid approximately the same. However, Medicare spending is $6911 per capita in Minneapolis and $13,824 in Miami . Put another way, each year we taxpayers make a $280 million donation to Florida’s trial lawyers.
The bottom line: It’s not about justice. It’s not about good medicine. It’s about money.
9. Does tort reform improve an emergency physician’s quality of life?
In my experience, in states where tort reform has been successfully upheld, emergency physicians do enjoy a higher quality of life.
On one of my shifts during my residency in Chicago, I encountered a young pregnant patient with a hip dislocation. While this is a challenging, high-risk case in any environment, in Chicago (possibly one of the most litigious and physician unfriendly cities in the country), it was an absolute night- mare. The hours that followed involved a toxic hot potato game between the ED, the trauma service, anesthesiology, OBGYN, and administration. Initially, I couldn’t even convince an attending to staff the case with me and put his/her name on the chart. The message was clear. No one wanted to assume the risk. Who loses in these types of situations? The patients. Thankfully this one had a good outcome in the end.
While I absolutely loved my residency, the training, and the people, working in a painfully broken medical liability system was challenging – even miserable at times. Despite being the largest/busiest trauma center in Illinois, we repeatedly lost pediatric neurosurgery and orthopedics coverage. These well meaning specialists simply couldn’t afford the insurance coverage that came with practicing in Chicago. My attendings clearly feared litigation and for good reason. One of my OBGYN attendings in medical school (who wrote many of the chapters in our textbook) told me about all of the cases he was forced to settle (despite “being right”) because it was less expensive for his insurance carrier to settle than to defend him. EPs in Chicago endured more stress and more risk, yet, they were paid less, and this massive pay cut was simply a donation to the legal community in the form of high premiums. State politicians never had any intention of making the situation any better. As a result, physician morale was low.
In 2006, as a newly minted attending, I moved across the border to The Hoosier State — a tort reform state since the 1970s. My malpractice premiums were very low and I paid them out of pocket. Many of my partners had trained in the state and their risk tolerance was incredible. I was forced to quickly adapt. I slowly realized that I could simply use good common sense. Bad outcomes still occurred and my partners and I still got sued, but thanks to Indiana’s Medical Review Panel (the hallmark of the state’s tort reform package), most of these cases “died in panel” after being reviewed by other EPs in the state. Despite being in a smaller community, specialty coverage was never an issue. The docs in the community were relaxed, happy, and well paid. Physician morale was high.
In 2012, I moved to Texas— another tort reform state with a phenomenal medical liability environment. I’ve experienced all of the same benefits that came with practicing in Indiana.
10. Where do we go from here?
We will probably never see traditional tort reform at the federal level. Some lawmakers have suggested “evidence-based safe harbors,” but I remain skeptical. This idea is well meaning, but I envision a good plaintiff’s attorney being able to punch holes in those guidelines. Others have suggested the implementation of “alternative dispute resolution models.” These include the models introduced in Massachusetts and Oregon which focus on early disclosure and apology and fixed settlements . Ideally, patients will receive money faster and the system will be less punitive for physicians. For instance, in Oregon, “adverse outcomes” will be reported to the Oregon Patient Safety Commission rather than the National Practitioner DataBank . Lastly, “compensation funds” have been suggested (a “no fault” model). While many states utilize these funds on a limited basis, lawmakers have suggested that all injuries be compensated based on a national fee schedule in an effort to obviate the adversarial nature and high costs of litigation.
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