The Doctor’s Advocate | First Quarter 2018
Government Relations Report
Damage Limits Protect Access to Healthcare
Advocating for sensible liability reforms at the state level is always challenging. In every state legislature, a few lawmakers are determined to prevent enacting limits on noneconomic damages in medical liability actions, or they want to raise or repeal any limits already in place. These legislators, typically elected with support from plaintiffs’ attorneys, seldom respond to overwhelming evidence that limits on noneconomic damages are critical to maintaining the availability of quality healthcare for their constituents. These lawmakers are, however, usually few in number.
More numerous are the legislators who would prefer not to fight over medical liability every year. The most common response from legislators with no personal stake in the battle over reform is, “This is just the same old fight between doctors and lawyers. You all need to work out a compromise.” This position ignores the history of medical liability reform. Where reforms have been enacted, limits on noneconomic damage are the result not only of a compromise between opponents and proponents of reform, but they are also a recognition that the right to redress for injury has to be balanced with the public’s need for access to medical care. But beyond that, this position misstates the nature of the conflict. The effort to enact and preserve sensible reforms is a broad-based campaign to keep physicians in practice, to make medically underserved areas more successful at attracting healthcare providers and facilities, and to commit healthcare dollars to patient care instead of liability costs. The battle pits doctors, hospitals, clinics, insurers, patients, and potential patients against those who would turn the courtroom into a lottery for the benefit of a small number of litigants and an even smaller group of trial lawyers.
The situations in Oregon and Colorado illustrate the importance of defending tort reforms in order to limit already severe physician shortages. Both states have enacted noneconomic damage caps, which are under attack despite rural populations with limited access to medical care. According to the U.S. Department of Health and Human Services’ Health Resources and Services Administration (HRSA), residents in many areas of both states face shortages of health professionals. On HRSA’s scale of 1 to 4, with 4 being the most severe shortage, HRSA designates both states as 3s. Colorado has 316 separate designated health professional shortage areas, with the worst concentrations from the Denver area extending northeast to the state line and the southwest corner of the state from approximately Durango to Montrose. Oregon has 329 shortage areas, with the most severe in the Portland area and in the central and coastal regions from Coos Bay to Eugene.
Oregon and Colorado already face severe shortages of healthcare providers. Repealing limits on medical liability damages would exacerbate these shortages. New healthcare providers would be less likely to locate there to begin their careers. As one young doctor who chose to practice in California over his home state of Wyoming told me, “I love the mountains, but I can’t pay student loans with scenery.” Healthcare providers and facilities would spend more on liability, taking dollars away from patient care. Regions already dealing with shortages would face more difficulty recruiting and retaining providers. The worst impact would fall on those least able to absorb it—the large numbers of people relying on community health centers for their care.
Community health centers, also known as Federally Qualified Health Centers, are the backbone of the primary care network. They are the main source of health, dental, and mental healthcare for the neediest patients. The Federal Tort Claims Act follows liability limits in each state, so an increase in state liability laws affects these clinics directly.
According to the Oregon Primary Care Association, more than 400,000 state residents receive their primary care at a community health center, with 73 percent of those patients living at or below the poverty line.
According to the Colorado Community Health Network, each year community health centers provide primary care for more than 740,000 state residents, including more than 212,000 children. Of those patients, 93 percent have family incomes below $48,600 for a family of four.
Community health centers already face uncertain federal funding and the challenges of serving low- or very low-income patients (many of whom may need additional services, such as translation). Raising or repealing medical liability damage limits will force all healthcare providers, including community health centers, to divert funds from patient care to litigation and insurance costs. Making healthcare delivery more expensive and healthcare providers more difficult to recruit and retain will make healthcare less available to a population that has no other options.
A cap on noneconomic damages ensures that injured patients receive fair compensation while preserving access to healthcare by reducing costs for doctors, nurses, and healthcare providers and helping them serve the most vulnerable populations. Raising or repealing that cap does nothing to help the patients who need the most help. Instead, it makes life more difficult for providers and patients already dealing with too many challenges. Unlimited liability primarily benefits those plaintiffs’ attorneys who specialize in suing doctors and hospitals and taking a large cut—often up to 40 percent—of any settlement or award.
The battle to enact and preserve sensible medical liability reforms really isn’t “the same old fight between doctors and lawyers.” It’s the trial lawyers against everyone.
View and interact with data about health professional shortage areas at https://datawarehouse.hrsa.gov.
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