At the Intersection of Health, Health Care and Policy Cite this article as: Marc A. Franklin Malpractice Reform And Health Reform Health Affairs, 33, no.3 (2014):519 doi: 10.1377/hlthaff.2014.0076
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Health Affairs is published monthly by Project HOPE at 7500 Old Georgetown Road, Suite 600, Bethesda, MD 20814-6133. Copyright © 2014 by Project HOPE - The People-to-People Health Foundation. As provided by United States copyright law (Title 17, U.S. Code), no part of Health Affairs may be reproduced, displayed, or transmitted in any form or by any means, electronic or mechanical, including photocopying or by information storage or retrieval systems, without prior written permission from the Publisher. All rights reserved.
Not for commercial use or unauthorized distribution Downloaded from content.healthaffairs.org by Health Affairs on March 12, 2015 at W VIRGINIA UNIV LIB
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doi:
10.1377/hlthaff.2014.0076
Malpractice Reform And Health Reform William Sage and David Hyman (Jan 2014) argued that because of the passage of the Affordable Care Act, “a short window of opportunity has opened for major changes to health care delivery.” Their article’s title succinctly captures their idea: “Let’s Make a Deal: Trading Malpractice Reform for Health Reform.” It would be a “simple exchange,” in which “physicians receive MICRA [California’s Medical Injury Compensation Reform Act of 1975]-style tort reform at the federal level” in return for accepting health care changes “that are likely to reduce waste, increase efficiency, and promote access to care.” Even if that window of opportunity exists, the authors’ proposed deal is both premature and wrong in substance. Assuming the “window” exists, the need to act cannot be based on the facts that physicians “focus on the liability risks of altering their behavior” and that malpractice insurance crises “have a way of panicking
physicians and distracting policy makers.” Even if the authors can establish the need for a deal now, why must it be at the federal level? Malpractice law has traditionally been a part of state tort law. States have different needs and have reacted in a variety of ways to a perceived need for change. Even if the Supreme Court finds that there is federal jurisdiction, we know that states often experiment with legislation that influences other states. Is the need here so great that we must force tort law into a single mandate, in which one size is presumed to fit all? And even if everyone agrees that Congress should act, MICRA is the wrong reform. This year, California may drastically change MICRA. Part of the disenchantment with the act was triggered by studies showing that MICRA’s cap on noneconomic harm disproportionately affects women, students, and senior citizens. Marc A. Franklin PORTLAND , OREGON
March 2014
33 : 3
Downloaded from content.healthaffairs.org by Health Affairs on March 12, 2015 at W VIRGINIA UNIV LIB
H e a lt h A f fai r s
519
The online version of this article, along with updated information and services, is available at: http://content.healthaffairs.org/content/33/3/519.1.full.html
For Reprints, Links & Permissions: http://healthaffairs.org/1340_reprints.php E-mail Alerts : http://content.healthaffairs.org/subscriptions/etoc.dtl To Subscribe: http://content.healthaffairs.org/subscriptions/online.shtml
Health Affairs is published monthly by Project HOPE at 7500 Old Georgetown Road, Suite 600, Bethesda, MD 20814-6133. Copyright © 2014 by Project HOPE - The People-to-People Health Foundation. As provided by United States copyright law (Title 17, U.S. Code), no part of Health Affairs may be reproduced, displayed, or transmitted in any form or by any means, electronic or mechanical, including photocopying or by information storage or retrieval systems, without prior written permission from the Publisher. All rights reserved.
Not for commercial use or unauthorized distribution Downloaded from content.healthaffairs.org by Health Affairs on March 12, 2015 at W VIRGINIA UNIV LIB
Letters There is a limit of 300 words for letters to the editor. Health Affairs reserves the right to edit all letters for clarity, length, and tone. Letters can be submitted by e-mail, [email protected], or the Health Affairs website, http:// www.healthaffairs.org.
doi:
10.1377/hlthaff.2014.0076
Malpractice Reform And Health Reform William Sage and David Hyman (Jan 2014) argued that because of the passage of the Affordable Care Act, “a short window of opportunity has opened for major changes to health care delivery.” Their article’s title succinctly captures their idea: “Let’s Make a Deal: Trading Malpractice Reform for Health Reform.” It would be a “simple exchange,” in which “physicians receive MICRA [California’s Medical Injury Compensation Reform Act of 1975]-style tort reform at the federal level” in return for accepting health care changes “that are likely to reduce waste, increase efficiency, and promote access to care.” Even if that window of opportunity exists, the authors’ proposed deal is both premature and wrong in substance. Assuming the “window” exists, the need to act cannot be based on the facts that physicians “focus on the liability risks of altering their behavior” and that malpractice insurance crises “have a way of panicking
physicians and distracting policy makers.” Even if the authors can establish the need for a deal now, why must it be at the federal level? Malpractice law has traditionally been a part of state tort law. States have different needs and have reacted in a variety of ways to a perceived need for change. Even if the Supreme Court finds that there is federal jurisdiction, we know that states often experiment with legislation that influences other states. Is the need here so great that we must force tort law into a single mandate, in which one size is presumed to fit all? And even if everyone agrees that Congress should act, MICRA is the wrong reform. This year, California may drastically change MICRA. Part of the disenchantment with the act was triggered by studies showing that MICRA’s cap on noneconomic harm disproportionately affects women, students, and senior citizens. Marc A. Franklin PORTLAND , OREGON
March 2014
33 : 3
Downloaded from content.healthaffairs.org by Health Affairs on March 12, 2015 at W VIRGINIA UNIV LIB
H e a lt h A f fai r s
519
