MONTPELIER – The Vermont General Assembly should take several steps to reform the state’s medical malpractice liability system, according to a committee that has studied the issue for the past 18 months.

In a report sent to the General Assembly, the Vermont Medical Malpractice Study Committee calls for malpractice claims to be screened by expert panels, in order to stop lawsuits without merit from being filed in court. The committee also said lawmakers should place limits on plaintiffs’ attorney fees and shorten the statute of limitations for filing malpractice claims. Lawmakers should continue to explore creating a program that would allow health care practitioners to apologize for medical errors without fearing that the admission will be used against them in court, the committee recommended.

Capping damages awarded to plaintiffs in medical malpractice cases has been an effective strategy in other states for reducing malpractice insurance costs, the study committee found. A cap on damages in Vermont would decrease premiums for Vermont’s hospitals and health care practitioners, the committee said. The panel heard evidence that a $250,000 cap on non-economic damages in Vermont would result in an average 5.7 percent premium decrease, and help to stabilize rates in the future.

Medical malpractice premiums in Vermont have increased between 50 percent and 80 percent over the last several years, and some medical specialties have seen their premiums more than double, noted Peter Dale, MD, president of the Vermont Medical Society. Meanwhile, other expenses such as office rent and employee wages continue to increase, and payments for physician services have stayed flat or declined, he said. “All of this is putting a tremendous financial strain on solo practitioners, group practices, and hospitals. With ever-increasing costs, and decreasing revenues, it is very difficult for any business – including your local doctor’s office – to survive.”  

In some cases, access to physician services has already been diminished, he said. “Sharply higher insurance rates have forced some independent Vermont physicians to stop performing certain procedures, in an effort to limit their liability. For example, three general surgeons in Bennington have stopped doing vascular surgery, which means patients from that area now have to travel to Albany or Burlington. Obstetricians in the Rutland area are referring patients with complex pregnancies to distant medical centers. If double-digit increases in medical malpractice premiums continue, this trend of decreased access to specialty care will likely worsen,” Dale said.

“The steps recommended in this report will help preserve access to physicians, especially in rural areas of the state, by helping doctors to stay in business and allowing them to offer services that their patients very much need,” Dale said.

The cost of a broken medical liability system is borne by all Vermonters, not just physicians, Dale said. Under the current system, physicians feel they must practice defensive medicine -- ordering more tests – in order to minimize the chances of being sued. Defensive medicine drives up health care insurance costs for everyone, he said.

A recent survey by the Vermont Medical Society found that 75 percent of physicians say they order more tests because of concerns about medical liability. A similar majority refer patients to specialists more often because of liability concerns. “The reforms endorsed by the Vermont Medical Malpractice Study Committee, such as pre-trial screening panels, could help lower health insurance premiums for all Vermonters by lessening the need for physicians to practice defensive medicine,” Dale said.

Fourteen states have taken the step of establishing pre-trial screening panels, which assess the merits of a malpractice claim before it is filed in court. In Massachusetts, plaintiffs must submit an offer of proof to the panel, which decides whether or not a legitimate question of liability exists. The panel’s findings are admissible in court proceedings.

Limits on the contingency fees that plaintiff’s attorneys can charge in malpractice cases have been enacted by several states, including California, in an effort to reduce the number of medical malpractice cases that are filed.

Some states have also adopted a shorter statute of limitations in an attempt to reduce the burden on physicians, who must carry medical malpractice insurance to cover long-term risks, the report noted. In Vermont, the seven-year statute of limitations does not begin to run for minors until they turn 18, which means that certain specialties such as obstetricians have risk exposure periods up to 25 years, driving up overall insurance costs.    

Nineteen states have enacted laws that protect health care provider apologies from being admitted into evidence, the report said. Studies have shown that apologies can lessen the chances that a patient will file a lawsuit, lowering the costs of litigation and insurance.