Changing Nature of Medical Malpractice Awards

We should expect to see diminishing medical malpractice awards and new challenges in medical malpractice litigation as a result of the Affordable Care Act, according to a recently published study.

But the author, a volunteer professor at the University of Cincinnati, in the College of Law, also provides a roadmap for a better way to navigate the new landscape of healthcare litigation.

Smaller medical malpractice awards will be the new norm

According to Prof. Jim O’Reilly, a book that explains the shift in health care in relation to malpractice litigation simply did not exist.  So he wrote one.  The author has brought his considerable experience as a scholar of damage lawsuits in Ohio to bear in his new book, but also presents new insights from his in-depth investigation into the Affordable Care Act.

In The New Medical Malpractice, published last month by the American Bar Association Press, O’Reilly asserts that the era of major multi-million dollar “windfall” jury awards may be over and that “For lawyers to better serve their clients, they have to understand the system has changed. If they don’t know about it, their client loses.”

While the “ultimate end point,” according to the author, is that “… people injured by mistakes should be compensated by the people accountable for the mistake,” the new state of affairs will involve “a much more diverse set of defendants and a much more complicated decision for compensation.”

Changing nature of health care to bring new challenges

The changing nature of health care in the wake of the adoption of the Affordable Care Act will likely mean new possibilities for providing health care, but also new possibilities for mistakes.  As millions of previously uninsured Americans now require coverage, the result may be more competition between insurance providers as well as lower costs.   According to O’Reilly, cost-cutting measures will also be apparent in health care as well.

For instance, we may see nurses, rather than doctors, staffing clinics in grocery or convenience stores.  Doctors may interact with patients via video rather than in person.  And we may see the rise of an increasing numbers of federally-subsidized clinics with nurses offering care.  In these settings, less direct doctor involvement could potentially mean less comprehensive evaluations or treatment from doctors and more potential for mistakes.

In addition, some newly-insured patients may enter the system with untreated medical issues that could complicate diagnosis and treatment.

Changes also needed in medical malpractice litigation

According to the author, medical malpractice lawyers need to change the way that they approach litigation if they are to represent their clients successfully in this new environment.  The most important change will be the nature of the defendants named in medical malpractice suits.

Attorneys will be far less likely to sue doctors, nurses, or other individual healthcare workers directly.  Rather, they will find it necessary to challenge larger organizations such as hospitals or health care centers.  This change will require lawyers to adapt to a new landscape in which they must be prepared to confront teams of aggressive lawyers representing these large, high profile institutions.