News extra

US Senate defeats bill to limit malpractice claims

Deborah Josefson Nebraska

A US bill that would have put an upper limit on medical malpractice claims for pain and suffering at $250000 (£153350; €221350) has been narrowly defeated in the Senate by a vote of 49 to 48.

The defeated bill, which was based on a Californian law, the Medical Injury Compensation Reform Act, also sought to limit punitive damages to either $250000 or twice the costs of medical expenses, lost wages, and other economic costs, whichever was greater. Additionally, fees of lawyers who take malpractice cases on a contingency basis would also have been limited.

The bill was supported by President Bush, the American Medical Association, and most Republicans. Unlike the Californian law, however, which protected only physicians from extremely high malpractice claims, the bill also sought malpractice protections for health maintenance organisations, medical device manufacturers, and pharmaceutical companies.

The bill, the Patients First Act, was a response to the medical malpractice crisis in the United States. Since the 1990s both medical malpractice awards and malpractice insurance premiums have been rising considerably.

In the states of West Virginia and Pennsylvania, malpractice insurance premiums have risen by 150% and 87% respectively since 1997. Rising insurance premiums have caused physicians in high risk specialties to limit their services substantially or move to states with lower insurance premiums.

In 19 states, access to specialists in neurosurgery, obstetrics, and trauma is problematic. The state of Nevada has been particularly hard hit, and major hospitals there, such as Desert Springs Hospital in Las Vegas, have closed maternity, orthopaedic, and trauma wards because many physicians in these specialties have left the state.

As a result, medical associations across the United States are also lobbying for reform. Many are developing tribunals to evaluate the legitimacy of malpractice lawsuits. In some jurisdictions, such as in Maine and Massachussetts, state law lays down that potential malpractice lawsuits be subjected to a prelitigation screening presided over by a panel of medical and legal experts.

The purpose of this screening is to discourage frivolous lawsuits. In Massachusetts, prelitigation screening prevents 16% of malpractice lawsuits from proceeding to trial. Some states, such as Florida, allow physicians to file complaints against other physicians for false testimony in malpractice suits.

The results of the hearings may then be forwarded to the Board of Medicine for action. Some specialty medical societies have gone even further. Some have reserved the right to revoke the memberships of medical expert witnesses whose testimony is deemed spurious in grievance tribunals (New York Times 5 Jul 2003, www.nytimes.com).

In some cases, physicians whose testimony is deemed spurious risk not only being thrown out of medical societies but may also have their licences revoked. This is what happened to Dr Gary Lustgarten, a Florida based neurosurgeon whose testimony in a North Carolina malpractice trial was deemed shoddy by his peers. He was first suspended from the American Association of Neurosurgery, and subsequently his North Carolina medical licence was revoked as a result of possibly false testimony.

The American Association of Neurosurgery has been particularly rigorous in enforcing grievance tribunals, and the testimony of over 50 members has been scrutinised for possible misconduct (American Medical News, 12 Feb, 2001) Expert witness criteria are also being established by medical societies.

Most societies require expert witnesses to practise in the same specialty as the physician against whom they are testifying and want their opinions to be supported by accepted medical literature.

The American Medical Association supports measures that more tightly regulate medical expert testimony. Commenting on the matter, an AMA spokesperson said: "The AMA believes that physician expert testimony constitutes the practice of medicine, and the practice of medicine should be subject to peer review."

The association’s house of delegates passed a resolution stating that testifying as a medical witness was part of practising medicine in 1997 and reaffirmed it in 1998, 1999, and 2000.