helathcare and tort reform
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HEALTH CAREAND TORT
Economics of Healthcare andPolicy
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TORT LAW
A tort is a civil wrongdoing or injury, other than contractual,which gives rise to an action for damages to compensate theinjured party.
In a tort suit, the alleged injured party (claimant or plaintiff)seeks monetary payment (damages).
Compensation is sought for harm allegedly done
by a defendant or an actor
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Damages may becompensatory, that is,designed to make the injuredparty "whole" to the extentthat money can do so
Damages may also bepunitive, that is, set at a levelintended to punish the actorand serve as an example todeter others
Damages
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TEST YOUR KNOWLEDGE
An emergency roomphysician referred an autoaccident victim with deepfacial lacerations to another
hospital. En route, the patientsuffers further seriousinjuries as a result of theambulance being involved ina serious collision. Theinjured party sues the first
hospital and the attendingphysician for negligence.
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Hint
The four elements of liabilityfor actionable negligence thatmust be established are:
Duty Owed- the existence of a
professional relationship
Breach of Duty- deviationfrom w
hat should have been
done
Injury, and Proximate Cause or
Causation- a direct causalrelationship between breachof duty and injury
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ANSWER
Breach of duty could not beestablished, therefore, liabilitycould not be proven
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HISTORY OF TORT IN THE US
Negligence law in America began to take shape during the 1830sand 1840s as a general theory of liability for carelessly causedharm. It is dated to Chief Judge Shaws 1850 decision in Brown v.Kendall.
Negligence emerged as a distinct tort sometime during the middleof the nineteenth century.
The essence of the tort was that a person should be subject toliability for carelessly causing harm to another.
Also essential to negligence, evident from an early date, was the
necessity of a causal connection between the defendants breachof duty and the plaintiffs damage that was natural, probable,
proximate, and not too remote.
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H.R. 5
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
Passed in theHouse on March22, 2012
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SECTIONS WITHIN HR5
Findings and purpose
Encouraging speedy resolution of claims
Compensating patient injury
Maximizing patient recovery
Additional HEALTH benefits
Punitive damages
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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FINDINGS
Congress finds that our current civil justice system isadversely affecting patient access to health careservices, better patient care, and cost-efficient healthcare, in that the health care liability system is a costly
and ineffective mechanism for resolving claims ofhealth care liability and compensating injured patients,and is a deterrent to the sharing of information amonghealth care professionals which impedes efforts to
improve patient safety and quality of care.
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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FINDINGS CONTD
Congress finds that the health care liability litigation systemsexisting throughout the United States have a significant effect on theamount, distribution, and use of Federal funds because of
(A) the large number of individuals who receive health care
benefits under programs operated or financed by the FederalGovernment
(B) the large number of individuals who benefit because of theexclusion from Federal taxes of the amounts spent to providethem with health insurance benefits
(C) the large number of health care providers who provide itemsor services for which the Federal Government makes payments.
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) ., FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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PURPOSE
Implement reasonable, comprehensive and effective health careliability reforms which are designed to:
Improve availability of health care services in cases in which health careliability actions have be shown to be a factor in decreased services
Reduce the incidence of defensive medicine and lower the cost of health
care liability insurance (all of which are factors in the escalation of health carecost)
Ensure persons with a health care injury care receive fair and adequatecompensation
Provide increased sharing of information in the health care system which willreduce unintended injury and improve patient care
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) ., FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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SPEEDY RESOLUTION OF CLAIMS
Three years after the dare of injury or one year after the discovery
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) ., FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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COMPENSATING PATIENT INJURY
UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL ECONOMICLOSSES IN HEALTH CARE LAWSUITS
Nothing in this ACT shall limit a claimants recovery of the dull amount of theavailable economic damages
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) ., FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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MAXIMIZING PATIENT RECOVERY
In any health care lawsuit in which the attorneyfor a party claims a financial stake in theoutcome by virtue of a contingent fee the court
shall have the power to restrict the payment ofthe claimants damage recovery to the attorney
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) ., FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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PUNITIVE DAMAGES
Punitive damages may, if otherwise permitted byapplicable State or Federal law, be awarded againstany person in a health care lawsuit only if it is provenby clear and convincing evidence that such person
acted with malicious intent to injure the claimant, orthat such person deliberately failed to avoidunnecessary injury that such person knew the claimantwas substantially certain to suffer. In any health carelawsuit where no judgment for compensatory damages
is rendered against such person, no punitive damagesmay be awarded with respect to the claim in suchlawsuit.
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) ., FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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FACTORS CONSIDERED
In determining the amount of punitive damages, ifawarded, in a health care lawsuit, the trier of factshall consider only the following
The severity of the harm caused by the conduct
The duration of the conduct or any concealment of
The profitability of the conduct to such party
H.R. 5- -112TH CONGRESS: PROTECTINGACCESS TO HEALTHCARE ACT. (2011 ) . INGOVTRACK.US (DATABASE OF FEDERAL
LEGISLATION) ., FROMHTTP: / /WWW.GOVTRACK.US/CONGRESS/B ILLS/112/HR
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MEDICAL LIABILITY REFORM DEMONSTRATION GRANTS
The Patient Protection and Affordable Care Act (ACA) authorized$50 million in demonstration grant money to States for thedevelopment, implementation, and evaluation of alternatives tocurrent tort litigation, such as certificate of merit programs, whichrequire a finding that a suit has merit before it can proceed to trial,
and health courts, which would have cases heard by a panel ofmedical experts rather than a lay jury.
Each state applying for funds has the liberty to develop analternative system, must allow for the resolution of disputes, andpromote a reduction of health care errors by encouraging thecollection and analysis of patient safety data related to disputes
by organizations that engage in efforts to improve patient safetyand the quality of health care.
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THE OTHER SIDE
alternative-dispute resolution route and sets up, say, anarbitration system presided over by a panel of medical experts theres a huge loophole. The law allows any plaintiff to opt out of
a program he or she doesnt like, and pursue his or her claims in
state court.
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COST OF DOING BUSINESS
The Cost of Medical Malpratice By State
http://www.statehealthfacts.org/comparetable.jsp?ind=437&cat=8&sort=697http://www.statehealthfacts.org/comparetable.jsp?ind=437&cat=8&sort=697 -
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AVERAGE CLAIM PAYMENTS BYSTATE
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THE MOST OBVIOUS MEDICALMALPRACTICE SOLUTION IN THE
WORLD
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CANADA
Malpractice insurance premiums in Canada are lower than thosein the United States for the following three major reasons:
The courts in Canada have set caps on medical liability awards.
Existing Canadian laws set a high hurdle for proving medical
liability. The CMPA is notorious for vigorously defending any and all
medical liability suits.
Additionally, in Canada, the losing party pays approximately two-thirds of the winners costs. This is a significant disincentive for
bringing a medical liability suit.
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ENGLAND
In England, the National Health Service (NHS) employs mostphysicians and administers all of the legal and business aspectsof practicing medicine. Physicians are not personally liable formedical liability expenses or claims and, as a result, they do nothave to purchase medical liability insurance.
The NHS has established a series of defense trusts that raisefunds using a pay-as-you-go approach
Only 4 percent of all potential claims result in trials and mostclaims are closed in less than 18 months.
The cost of the settlement is spread evenly over the plaintiffs life.In 2008, only 5,470 claims were filed.
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GERMANY
Germany guarantees universal healthcare coverage,
Judges, not juries, try German civil cases
standardized reimbursement tables for noneconomic losses guidejudges decisions
If a claimant wants an award greater than the amount specified inthe table, the costs of the litigation are deducted from the award
medical malpractice awards for severe cases have risen to anaverage of nearly $650,000 per successful suit
All malpractice claims are initially referred to mediation boardsmade up by experts designated by Germanys Physicians Guild
Free
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SWEDEN
In 1996, the Patient Torts Act modified the no-fault system,requiring that patients go to court to prove liability claims and thatall physicians carry malpractice insurance.
Patients are compensated for complications from transmission ofinfections and side effects of medication, or if a differentprocedure might have prevented the injury
Compensation is paid through a patient insurance fund that isfunded by a tax on organizations that represent physicians
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JAPAN
Japanese Medical Association, which represents about 40 percent ofthe countrys physicians
Japanese physicians earn their income from outpatient care
A study by the Institute of Medicine found that the number of errorsand reportable events in Japan was nearly equal to those in the
United States Patients pursuing claims must initially go through a binding mediation
process
Societal norms also may play a role in the rise of malpractice suits inJapan.
The country has experienced an across-the-board erosion of trust inJapanese professionals, including medical personnel. In addition,awareness of patient rights, including the right to be compensated inthe case of medical error, is on the rise in Japan.
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TRUE OR FALSE
A. Japanese doctors earntheir living from ambulatorycare?
The H.R.5 was passed bythe House in 2011?
Juries try Germanmalpractice cases?
False- outpatient care
False- 2012
False- Judges
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REFERENCES
http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/
http://blog.hawaii.edu/aplpj/files/2011/12/APLPJ_13.1_Bublick.pdf
http://www.kff.org/insurance/upload/medical-malpractice-law-in-
the-united-states-report.pdf http://armymedical.tpub.com/MD0066/MD00660085.htm
http://online.wsj.com/article/SB124631652544770707.html
http://www.aaos.org/news/aaosnow/sep11/managing4.asp
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THANK YOU!
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REFERENCES
http://blogs.wsj.com/law/2010/03/23/on-tort-reform-and-the-health-care-bill-whered-we-end-up/
http://blog.hawaii.edu/aplpj/files/2011/12/APLPJ_13.1_Bublick.pdf
http://www.kff.org/insurance/upload/medical-malpractice-law-in-
the-united-states-report.pdf http://armymedical.tpub.com/MD0066/MD00660085.htm
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