Two identical medical malpractice bills (SSB 1225 and H.F 592) have been introduced in this year’s Iowa legislature that would raise the non-economic damage cap from $250K to $1 million. In return, the bill would remove language that would allow juries to determine whether to lift the $250K cap if the losses were “substantial or permanent” to the patient. Basically, the bill’s limit of $1 million would no longer allow a jury the flexibility to award higher non-economic damages in particularly egregious cases.

Why are harmed patients held to a much higher standard (with additional barriers) than other victims of harm? (Lori Nerbonne – Patient Advocate)

Quite simply, tort reform legislative measures initiated by the medical community are meant to limit the financial exposure of doctors and hospitals, regardless of the preventability and extent of the harm they cause. Physicians and hospitals are too ensconced in maintaining their comfortable status-quo by not coming to terms with the real enemy in medical malpractice war – themselves.

Two Large Contributors to Medical Malpractice

For medical providers and their insurance companies, tweaking med mal reform is a quick, silver-bullet solution. However, this ‘solution’ is encumbered with five myths that do not address the true drivers of med mal costs. There are at least two large contributors to medical malpractice NOT addressed by this latest tort reform bill:

1. MASSIVE MED MAL CLAIMS ARE INCURRED BY JUST A FEW DOCTORS – During a 20-year period (1990-2010), only 1.73 percent of Iowa physicians were responsible for one-half of all the money paid out for medical malpractice in our state. Most of these physicians had multiple malpractice payments. Iowa’s rate is similar to the national norms.
2. STATE MEDICAL BOARDS TAKE LITTLE ACTION ON THEIR OWN – State medical boards are largely derelict about policing the worst offenders who repeatedly cause malpractice payouts. As for Iowa, only 16 percent of Iowa doctors with high malpractice claims had reportable action by the Iowa Board of Medicine. Only 10 percent had any reportable action taken against their clinical privileges by an Iowa hospital. As a result, a meager one-sixth of the 1.73 percent of physicians have had any action taken against their licenses – and only one-tenth of them have had any action taken against their clinical privileges.

Iowa Board of Medicine

Many state medical boards are government entities that consist of politically appointed physician members, which can be an inherent conflict-of-interest when policing physicians. Historically, physicians have a poor record of policing themselves. In January, ‘CBS This Morning’ covered this national problem. The eight-member Iowa Board of Medicine, it must be noted, consists of five physicians and three public non-physician members. There are also two alternate board members, both of which are physicians.

Recent original research by Dr. Robert E. Oshel using the National Practitioner Data Bank (NPDB) Public Use Data File through March 30, 2020, found the Iowa Board of Medicine took an average of just over 15 ‘serious’ actions per year from 2017 through 2019. Consequently, the Iowa board ranks 18^th of all state boards based on the number of serious actions taken per 1,000 licensees. This means that if the Iowa board were as proactive as the most active state board, it would have taken 89.6 percent more serious actions (just over 29 more serious actions each year) than it did during that period of time.

The Harris Poll about State Medical Boards

According to a 2018 national survey by The Harris Poll, only 49 percent of Americans knew that state medical boards are responsible for the licensing and regulating of physicians in the U.S. Because the public lacks knowledge about the role of state medical boards, only 31 percent of the 2,018 survey respondents correctly understood that state medical boards should be the first authorities to contact if they have a complaint about the competence or conduct of a physician. Fifty-three percent of the respondents thought other entities should be contacted first, and the remaining 16 percent were “not at all sure” whom to contact first. Fewer than a third of Americans (27 percent) know how to find out if a physician has ever received a disciplinary action against their medical license – an indication that Americans do not use the websites of state medical boards.

Twenty percent of the Harris Poll respondents reported being subjected to physician ‘misconduct.’ Respondents living in the Midwest and South were almost twice as likely to cite experiencing physician misconduct than respondents living in the Northwest. Only 33 percent of respondents indicated they filed a complaint against or reported the physician to any organization – including a state medical board.

The Solution?

The solution for malpractice costs is to reduce malpractice acts, not create more barriers for injured patients to seek compensation. (Dr. Robert E. Oshel)

The mission of each state medical board is to protect the health, safety and welfare of the public from all incompetent, unprofessional and improperly-trained physicians through the proper licensing, disciplining and regulating of physicians. Public awareness of state medical boards is absolutely critical for those boards to be successful in achieving this mission. ‘Reform’ measures should be used to help arm and enable peer reviewers and medical boards to correct and/or discipline those outliers who actually commit adverse events in the first place.

Instead of passing the latest tort reform bill, Iowa legislators should pursue approaches that ensure the Iowa Medical Board of Medicine is equipped with legal tools and funding to adequately regulate the medical profession. This can begin by reforming the recruitment of board members to ensure there is no conflict of interest. Additionally, establishing an awareness campaign to educate the public about the purpose of the Iowa Board of Medicine is paramount to enhancing its role in receiving and investigating complaints about dangerous physicians.

Protecting physicians by ignoring repeat instances of malpractice, in addition to imposing penalties that are not commensurate with offenses, will only allow this problem to persist. Med mal claims will drop drastically with appropriate punishments. Such action would send the right message to all physicians that incompetence (and bad medicine) is not acceptable in the state of Iowa. Restoring patient trust is important.

Unfortunately, the newest effort in the Iowa legislature does nothing to do this. This legislation will only satisfy those unwilling to police themselves.

To stay abreast of healthcare-related issues, we invite you to subscribe to this blog.