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Medical Liability Fact Sheet

  • Billions of dollars in defensive medicine are driving up the costs of health care for everyone and harming patients.   
  • The lack of medical liability limits is directly linked to workforce shortages in medicine, especially among specialists needed to see patients in the emergency department.
  • Texas medical liability reforms are a model for the nation. 
  • ACEP supports H.R. 36 and S. 961 in Congress to reform the nation’s liability system.
  • Health care reform is incomplete without meaningful liability reform.


How does the medical liability crisis affect patients?

States with litigious medical liability climates have a much harder time attracting and retaining an adequate physician workforce. Patients face physician shortages, delays in care and increased costs as a result.

The most dangerous consequences are delays in medical care caused by physician shortages. Many on-call physicians will neither care for emergency patients nor perform high-risk procedures out of fear of lawsuits. Some medical specialists have scaled back their practices or shut their doors entirely. This has left some areas of the country without access to specialists, such as neurosurgeons, orthopedists and hand surgeons. As a result, patients must travel farther — sometimes out of state — and wait longer to receive needed care.

The costs of a broken litigation system and defensive medicine are paid by all Americans through higher premiums for health insurance and higher out-of-pocket payments for care.

A 2008 study by the Massachusetts Medical Society estimated the cost of defensive medicine at $1.4 billion for Massachusetts alone.[i]  The national cost of defensive medicine is hard to quantify precisely, but most studies estimate it at around 2 percent of all health care spending (or $45 billion in 2008).[ii] Physicians responding to a Gallup poll conducted in early 2013 “attribute 26 percent of overall health care costs to defensive medicine.”[iii]

Taxpayers bear a substantial burden, given that public health insurance – government-supported Medicare and Medicaid insurance – paid for 39 percent of the nation’s health care costs.[iv] The Congressional Budget estimates that limitations on medical malpractice litigation would reduce deficits by $48.6 billion over the 2013-2022 period.[v]  

How does the medical liability crisis affect what happens in the emergency department?

Emergency departments care for the most severely ill and injured patients who are at greatest risk of dying. Therefore, emergency physicians can’t afford to miss anything. They are required by law to treat anyone who comes through the door, regardless of insurance status or ability to pay. Very often they are working with little or no knowledge of the patient’s history. Lacking liability protections, emergency physicians are more likely to order extensive tests in order to rule out absolutely every life-threatening condition. 

An ACEP poll conducted in 2011 showed that 44 percent of emergency physicians consider the lack of liability protection the single biggest obstacle to cutting costs in the emergency department. The same poll showed that more than half (53 percent) of emergency physicians order the number of tests they do because they fear being sued.[vi]

The shortage of specialists willing to take call in the emergency department leads to dangerous delays in care.

What are the solutions?

Texas medical liability reforms are a model for the nation. Hundreds of physicians have moved to the state, and patient safety has improved. Texas has achieved the second biggest improvement for emergency patients wait times among all 50 states (Press Ganey 2010).[vii]

The Texas reforms included:

  • A cap on non-economic damages
  • $250,000 for all physicians per claimant
  • $750,000 maximum non-economic award from all parties
  • Periodic payments for awards greater than $100,000
  • Protections for emergency department care providers
  • Expert witness reforms to curb frivolous lawsuits

ACEP supports caps on non-economic damages at $250,000 in medical lawsuits. This would not cap economic damages, such as lost earnings, medical care and rehabilitation costs. Non-economic damages are the subjective, non-monetary losses suffered by an injured party for which the law sets no fixed standard for measuring the exact amount.

ACEP supports a cap on attorneys’ fees. In many states, plaintiff attorneys will take one third or more of an injured patient’s malpractice payments, which is not fair to patients. 

ACEP supports time limits on filing lawsuits.

ACEP supports extending sovereign immunity to emergency medical personnel, similar to the immunity afforded to government public health officials.

What federal legislation does ACEP support?

ACEP supports passage of H.R. 36 — the “Health Care Safety Net Enhancement Act of 2013,” introduced by Rep. Charlie Dent (R-PA). This legislation would provide limited liability protections to (emergency and on-call) physicians who perform the services mandated by the federal EMTALA law, which requires patients be screened, diagnosed and treated, regardless of their insurance status or ability to pay.   This legislation would not only help ensure emergency physicians will be there when and where you need them, but it would play an important role in helping to secure the services of on-call specialists as well. 

ACEP also supports passage of S. 961 — the “Health Care Safety Net Enhancement Act of 2013,” introduced by Senator Roy Blunt (R-MO).  The legislation would include limiting non-economic damages on liability settlements, limiting attorney contingency fees to make sure patients receive appropriate shares of compensation and providing a reasonable statute of limitations on claims, among other things.

[i] http://www.massmed.org/AM/Template.cfm?Section=Research_Reports_and_Studies2&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=27797  

[ii] Health Affairs, “National Costs of the Medical Liability System,” Michelle M. Mello, etc. September 2010.

[iii] http://www.jacksonhealthcare.com/media-room/news/gallup-release-v2.aspx

[iv] California Health Care Foundation, “Health Care Costs 101,” http://www.chcf.org/publications/2012/08/health-care-costs-101

[v] Congressional Budget Office, H.R. 5: Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011, http://www.cbo.gov/publication/43108

[vi] ACEP member survey, 2011, http://www.acep.org/uploadedFiles/ACEP/newsroom/NewsMediaResources/StatisticsData/ACEP%20Patient%20Visit%20Profile%202011.pdf

[vii] Press Ganey, Pulse Report 2010, Emergency Department Patient Perspectives on American Health Care, page 7.


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