November 8, 2013

162017_132140396847214_292624_nHow does the Affordable Care Act (commonly referred to as “Obamacare”) affect medical malpractice claims in the United States? The short answer is: not much (at east directly). Fortunately for the victims of medical malpractice in the United States, efforts at federal (nationwide) medical malpractice tort reforms have not gained much traction and the issue of medical malpractice reform generally remains with the states.

Many U.S. states have engaged in varied and differing “medical malpractice tort reforms” since the 1970s, ranging from caps (limits) on noneconomic damages (such as pain and suffering, mental anguish, emotional distress, disfigurement, and loss of consortium) to mandatory arbitration of medical malpractice claims, mandatory preliminary reviews of medical malpractice claims by medical malpractice panels before the claims may be filed in court, restrictions on who may testify as experts during medical malpractice trials, restrictions on joint and several liability in medical malpractice claims, and limits on attorney’s fees in medical malpractice cases, etc.

There has been some recent recognition that medical malpractice tort reforms in many states have unduly, unfairly, and unjustly harmed medical malpractice victims: for example, there is a movement being organized in California to seek to increase its $250,000 cap on noneconomic damages in medical malpractice cases that has been in effect and has not increased since it was first imposed in 1975 (California also limits attorney fees, rejects the collateral source rule for third-party payments, and eliminates joint and several liability for certain damages).

Nonetheless, several provisions of the Affordable Care Act (“ACA”) may have an effect on medical malpractice claims in the United States. The ACA provides $50 million in funding for state programs to explore alternatives to current medical malpractice tort law. States that accept the grant money over the five-year period are required to develop a program that reduces medical errors by collecting and analyzing patient safety data related to medical malpractice disputes. The goals of the pilot programs are to improve access to liability insurance and to show patients alternatives to filing lawsuits. The ACA’s grant program has been subject to criticism by tort reform proponents who say that it is not designed to address the root problems that are the basis for their tort reform efforts.

The ACA may also indirectly affect medical malpractice claims in the United States as a result of its provisions that address healthcare issues such as the burden of uninsured patients on hospital emergency rooms (the number of emergency room visits increased from 124 million in 2008 to 136 million in 2009 in the United States), the large number of uninsured Americans, the need for better electronic medical records, the growing disparity between the cost of medical care and the quality of medical care, and the lack of regulation of the insurance industry (the ACA includes a “pay for performance” initiative that will dock reimbursements for care providers who fail to meet minimum standards and provides for insurance exchanges that will promote quality and safety).

Because uninsured patients use emergency rooms for routine medical needs instead of seeing their doctor (if they have one), or delay treatment before going to the emergency room that results in sicker patients, and because emergency room visits cost substantially more than visits to a doctor’s office, it is argued that the ACA’s expansion of health care coverage to the uninsured will result in fewer emergency room visits and less exposure of emergency room medical providers to claims of medical malpractice.

While some may argue that the expanded insurance coverage provided by the ACA may lead to more malpractice litigation due to the number of additional patients receiving medical care, the ACA may not result in increased medical malpractice claims: research has shown that poor people in general are less likely to sue their doctor due, in part, to their lack of access to legal resources and their lack of money to initiate a malpractice claim.

The ACA’s reliance and promotion of technology, such as increased use of electronic health records by doctors and other providers, the provision of funds to create statewide electronic databases of immunization records, the provision of $190 million annually to develop and maintain an information exchange among state and local health departments for information about disease prevention and other epidemiological issues, training provided to long-term care facilities to transmit prescription and patient information electronically, standardizing billing procedures for providers, and requiring health plans to adopt rules for the confidential exchange of health information, are expected to not only lower overall health care costs but also reduce medical errors and improve the quality of care, which should reduce medical malpractice claims.


If you or a family member may have suffered serious injuries or other substantial harms as a result of medical malpractice in the United States, you should promptly seek the legal advice of a local medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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