NCPA - National Center for Policy Analysis

Health Reform and Medical Malpractice Reform

April 26, 2011

The final version of the Patient Protection and Affordable Care Act (PPACA) included only two minor provisions related to medical malpractice.  Section 6801 encourages states "to develop and test alternatives to the civil litigation system," say David A. Hyman, University of Illinois, and William M. Sage, University of Texas at Austin.

Section 10607 authorizes $50 million over a five-year period to support demonstration grants to states for the "development, implementation, and evaluation of alternatives to current tort litigation for resolving disputes over injuries allegedly caused by health care providers or health care organizations."

To qualify for the new funding, a state must demonstrate that its proposal:

  • Makes the medical liability system more reliable and efficient.
  • Encourages the disclosure of health care errors and enhances patient safety.
  • Improves access to liability insurance.
  • Fully informs patients about the differences in the alternative and current tort litigation.
  • Provides patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time.
  • Does not conflict with state law and will not limit or curtail a patient's existing legal rights.

Why did the PPACA not emphasize malpractice reform as a more important component of health care reform?  Should the PPACA have done more to change the rules of malpractice liability? What kinds of changes might make sense?  The PPACA's omission of malpractice reform was a missed opportunity to secure the support of physicians for payment reform and delivery-system transformation.  The real issue is what we want our health care system and our malpractice system to do when working together. 

Modifications to both should be undertaken with that question in mind, say Hyman and Sage.

Source: David A. Hyman and William M. Sage, "Do Health Reform and Malpractice Reform Fit Together?" The American Enterprise Institute, April 1, 2011.

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