Medical Malpractice Insurance in Massachusetts
Ranking fourth in the nation for money paid to settle malpractice cases and classified
as one of 21 crisis states in desperate need of tort reform by the American Medical
Association, the Massachusetts Medical Society
(MMS) conducted a 2008 survey of its physicians on the practice of defensive medicine
in relation to fear of lawsuits. The results showed that medical tests, hospitalizations
and unecessary prescriptions arguably cost as much as $1.4 billion annually and
threatens access to care for all Massachusetts' citizens.
According to the MMS, since 1992, medical malpractice insurance rates in Massachusetts
have risen 138.3 percent and practice expenses have risen 81.9 percent, while Medicare
reimbursements have only increased by 20 percent. The MMS leadership contends that
this is an unsustainable model that threatens the medical well-being of all Massachusetts
citizens. The Society reports that the number of physician specialties that rank
in short supply has doubled to 12 in the last year. Among the largest, most critical
shortages are neurosurgeons, vascular surgeons, anesthesiologists, cardiologists
and gastroenterologists as well as psychiatrists and primary care physicians. In
response, the MMS points to the successes of past legislation and has outlined additional
reforms it hopes will stem rising medical liability costs, reduce the number of
frivolous lawsuits and improve access to healthcare.
The first calls for medical malpractice tort reform in Massachusetts began in the
early- to mid-1970s, as the entire nation dealt with skyrocketing malpractice premiums
and shrinking access to coverage with commercial carriers leaving the medmal marketplace.
In response, the Massachusetts Legislature passed a bill requiring the submission
of medical injury claims to a "medical malpractice tribunal." While not binding,
the decision of the tribunal was admissible at any subsequent trial, and the Massachusetts
Supreme Judicial Court upheld the constitutionality of this statute in 1977.
The Massachusetts Legislature followed with the Medical Malpractice Act of 1986,
which enacted three new reforms designed to contain still escalating claims of medical
malpractice and still growing physician medical malpractice premiums. These reforms
included:
- A limit on attorney fees whereas sliding scale fees may not exceed 40 percent of
the first $150,000 of an award; 33.33 percent of next $150,000; 30 percent of the
next $200,000; and 25 percent of damages that exceed $500,000.
- A statute of limitation of three years from date of injury; unless the patient is
a minor under 6 years of age, where statute does not begin to run until the minor's
9th birthday.
- A cap on damage awards limited to $500,000 total, unless the jury determines that
there is a substantial or permanent loss or impairment of bodily function or substantial
disfigurement, or other special circumstances which warrant a finding that the cap
was unfair.
While the Medical Malpractice Act of 1986 did offer the state’s physicians some
relief, the MMS believes that, in the face of rising healthcare costs, which they
believe has been brought upon by the escalating employment of defensive medicine
in response to medical liability fears, now is the time to revisit the legislative
process in order to address the problem. The MMS is currently pushing the Massachusetts
Legislature to reconsider
House Bill 985, "An Act Relative to Patient Care Access," which stalled
in the 2008 legislative session and it plans to reintroduce this year.
Among the provisions of that legislation are:
- Replacing the system of “joint and several” liability with the requirement that
a defendant be liable only for the amount of damages for which they were responsible.
- Indexing the prejudgment interest rate to Treasury Bill rates, replacing the current
rate that is four percent higher.
- Requiring that an top-rated witness in an action against a physician be board certified
in the same specialty as the defendant physician.
- Allowing the payment of future damages in periodic payments in awards of $50,000
or more, rather than in a lump sum.
- Consideration of collateral sources in awards of health or disability insurance.
For the 2009 legislative session the MMS is also supporting
House Bill 1445, "An Act Relative To Top-Rated Witnesses in Actions for Medical
Malpractice," requiring top-rated witnesses in actions against physicians
to be board certified in the same specialty as the defendant physician, and a separate
bill called "An Act Relative to Improving Patients' Access to Timely Compensation".
This bill would adopt an "I'm sorry" clause, making statements of regret
by healthcare providers inadmissible in legal proceedings. The MMS believes the
outcome of these proposed reforms could have a great and lasting effect on the states
medical liability premiums as well as improve the access to healthcare for all of
Massachusetts' citizens.
|
