- A Fletcher Allen doctor watches during the health care bill signing. VTD/Taylor Dobbs
A report released this week by the Shumlin administration concludes that a no-fault system for medical malpractice liability is not the best direction for health care reform in Vermont.
The report, a requirement of last year’s health care reform law, addressed the merits of moving to a no-fault system in the context of the state’s efforts to contain health care costs.
A report produced for the state by Harvard economics professor William Hsiao in February 2011 recommended the state shift to a no-fault system similar to New Zealand’s to reduce health care expenditures. The Vermont Medical Society and many health care providers have pushed for this type of reform. The theory is that less fear of lawsuits means doctors practice less “defensive medicine” which generally means avoiding extra tests or office visits that providers order for fear of being sued if they miss something. Fewer tests would help reduce the costs of the state’s health care system.
Robin Lunge, director of health care reform for the Shumlin administration, said the report found that the connection between tort reform and increased health care costs is not as strong as some may think.
“The research we found hasn’t found a strong correlation between tort reform and reductions in defensive medicine,” she said.
The prime example for malpractice reform, the New Zealand system, is not an apples-to-apples comparison to Vermont, the report finds.
In New Zealand, the medical malpractice liability system is “part and parcel of that country’s system for dealing with personal injuries writ large, just as our current medical malpractice system fits within our overall tort system,” the report states.
The no-fault system in New Zealand works through one entity that adjudicates claims and reimburses injured patients regardless of fault. It addresses all personal injuries, not just those due to medical procedures.
In Vermont, medical malpractice compensation is based on tort law. To prove liability for medical malpractice, patients have to demonstrate that a doctor breached a duty to a patient and that breach caused the patient’s injuries.
While the report falls short of recommending a no-fault system, Lunge said the administration proposes other methods of dealing with disputes between doctors and patients when there is a bad outcome.
For example, early mediation where the parties work out their differences before going to court, could be beneficial. Such dispute resolution, she said, can result in compensation for patients and benefit doctors by resolving issues before they are made public in the court system.
For many physicians, the proposal not to move toward a no-fault system was a disappointment.
Paul Harrington, executive vice president of the Vermont Medical Society, said he was not surprised that the administration did not recommend a no-fault system.
Reforming medical malpractice liability would be a big step for the state, he said. The idea of no-fault compensation is still worth considering on a pilot basis, Harrington said.
“Most Vermont physicians think the current system is not working for injured patients or for doctors,” he said.
Rep. George Till, a physician who sits on the House Committee on Health Care, echoed concerns from doctors who often live in fear of lawsuits.
The fear of legal action is the motivating factor for doctors, Till said. “The only way you get rid of defensive medicine is getting rid of the fear,” Till said.
Doctors order additional tests, office visits and procedures in order to protect themselves from legal liability.
Till said doctors will err on the side of caution unless the possibility of being sued is removed.
The report from the administration found malpractice payouts in Vermont are some of the lowest in the country. It found the number of medical malpractice claims in Vermont was below the national average. It also found the state’s malpractice insurance premiums were the lowest in New England in 2003.
