• Will the Affordable Care Act Curtail Medical Malpractice in Illinois
  • June 21, 2013 | Author: William T. Young
  • Law Firm: Johnson & Bell, Ltd. - Chicago Office
  • The Affordable Care Act (ACA) contains wide-ranging proposals that will broaden access to health care, set new rules for health insurance providers, and implement fees for certain small businesses that do not offer insurance plans. The most obvious changes in the ACA that will affect medical malpractice litigation are the programs directly targeting civil litigation.

    The most direct impact of the Affordable Care Act on medical malpractice law is the $50 million in funding it provides for state programs that will explore alternatives to current tort law as it relates to medical malpractice. The money will be made available in the form of state grants over a five-year period.  States that want to receive grant money must develop a program that reduces medical errors by encouraging the collection and analysis of patient safety data related to disputes.   Although the pilot programs are not expected to result in major sweeping changes, their goals directly target some of the most pressing issues in the health-care system, such as resolving disputes efficiently, reducing medical errors, and enhancing patient safety. They also aim to improve access to liability insurance and show patients alternatives to filing lawsuits.

    The alternative methods for resolving disputes can be funded by public or private money, or a combination.  This effort to explore alternatives to the current tort system could provide valuable information over the next few years. Supporters of more widespread tort changes downplay the benefit of the ACA’s pilot program, saying it is not designed to address the root problem of abusive tort litigation.  One commentator pointed out that the government official in charge of supervising the program is a former trial lawyer for plaintiffs, and stated that the handful of programs that have received funding so far have been “ineffectual” in terms of addressing litigation costs and profiteering lawyers.

    Many, however, contend that it is simply too soon to tell how much of an impact the programs will have because the grants have only been available since the beginning of fiscal year 2011. It could very well be that after that five-year period is over there will have been a host of innovative solutions that will pave the way for future changes.

    Many argue, however, that $50 million in funding to curtail medical malpractice is nothing but a political ploy that represents a mere drop in the hat of the overall cost to the healthcare system.  Some studies have set forth that the cost of medical malpractice in the United States is about $55.6 billion a year.  This represents roughly 2.4 percent of the annual healthcare spending.  A high percentage of this cost is due to what researchers term as defensive medicine.

    Given the wide chasm between what the Affordable Care Act has allocated to target medical malpractice and the overall cost to the system, it appears that the law does not have the strength and flexibility to tackle the cost of medical malpractice in the United States.  Furthermore, the pilot programs have not yielded the results necessary to instill much confidence in the efficacy of this policy initiative.  Tort reform remains, as has been the situation for decades, largely an issue addressed at the local level, typically in the form of caps on noneconomic damages and requisite hurdles to filing such claims.  The Illinois legislature has now attempted on several occasions to address these issues.  The Illinois Supreme Court, however, ruled that the tort form passed by the legislature and signed into law by the governor was unconstitutional.   As such, this remains an area of public policy ripe for discussion both in Illinois and nationally.