Paste Chris NotteProfessor GrobergPriv & Prot: Law & Reg in Hc11/12/17 In 2005, a Vermont medical malpractice study committee researched and produced a report that analyzed any connection between the cost of medical malpractice insurance premiums and medical malpractice laws. There were recommendations made in this report to reform the medical malpractice laws in Vermont that aim to reduce healthcare costs, medical errors, and to protect the rights of patients. In 2012, the Vermont legislature put two measures that were recommended in the committee report into law as part of Act 171. These 2 recommendations were to implement a certificate of merit process when the medical malpractice claim is filed and to allow the plaintiff to request pre-suit mediation with each identified defendant. (Lunge & Martin, 2014). The first measure from the Vermont medical malpractice study committee that was enacted into Act 171 was to implement a certificate of merit process when the medical malpractice suit if filed. The certificate of merit process requires that the attorney filing the malpractice suit also file the certificate of merit. The certificate of merit is a certification that the plaintiff or the plaintiff’s attorney has consulted with a healthcare provider that is qualified to make an opinion on if the standard of care has been met. The purpose of the certificate of merit is to “identify and resolve meritorious claims and reduce areas of dispute prior to litigation, which will reduce the litigation costs, reduce the time necessary to resolve claims, provide fair compensation for meritorious claims, and reduce malpractice-related costs throughout the system” (General Assembly of the State of Vermont, 2012). The second measure that was enacted into Act 171 was the implementation of a pre-suit mediation session between the plaintiff and each identified defendant. This is not a requirement, but an option that is available to the plaintiff when “civil action in tort or in contract alleging that an injury or death resulted from the negligence of a health care provider and to recover damages resulting from the personal injury or wrongful death” (General Assembly of the State of Vermont, 2012). When the plaintiff requests a pre-suit mediation, the defendants are sent a certified letter that a mediation session has been requested. This letter includes the names of all the potential defendants and provide a brief statement describing the grounds for the lawsuit. Also included in this letter will be the certificate of merit for the defendants to review. The defendants have 60 days to respond to participate or refuse to participate in the mediation. If they agree to mediation, they may come to an agreement or settlement prior to this lawsuit being filed. If the defendant refuses to participate or does not respond within a 60-day window, the malpractice suit can be filed (General Assembly of the State of Vermont, 2012). The purpose of the certificate of merit and pre-suit mediation is to keep some medical malpractice suits out of the court system. With the certificate of merit process, it was felt that by requiring the plaintiff to get an opinion from a qualified provider on the merits of
the case prior to the suit being filed would reduce the number of cases coming into the court system that were without merit. The pre-suit mediation process was enacted for the same purpose, to reduce the number malpractice lawsuits from getting to the trial stage, by allowing the plaintiff to request mediation prior to the suit being filed. Did it work? The impact Act 171 had on malpractice claims and malpractice insurance rates were reviewed in 2014 by the state of Vermont in the Report on Impact of Vermont Malpractice Reform. A review of the data and interviews with stakeholders found that neither the certificate of merit or pre-suit mediation processes had a significant impact, positively or negatively, on malpractice reform. As reviewed in the report, there was little available data to review to make an accurate analysis. For instance, in the 2014 report, the State of Vermont did not track metrics relating to the certificate of merit and pre-suit mediation processes. So, it could not be evaluated if the pre-suit mediation process lowered the number of malpractice lawsuits filed because of successful mediation or the number of malpractice lawsuits that were not filed because of an inadequate certificate of merit. So, to evaluate the measures enacted in Act 171, they needed to review other data. They chose to review malpractice claim awards in Vermont, rates of malpractice insurance, and statewide provider and physician retention, then compare that data prior to Act 171 and post Act 171 to determine the effectiveness (Lunge & Martin, 2014). What was found in the data analysis is that per capita malpractice payouts decreased one cent ($4.36 vs. $4.37) in Vermont. While this is a negligible amount, compared to the rest of the United States, all other states had increases in per capita malpractice payouts. The data with malpractice insurance rates found that Vermont providers had a 3.1% increase in insurance rates compared to before Act 171. Looking across the country, other states, on average, had a decrease in their providers malpractice insurance rates. Vermont was one of only six states in the United States that showed an increase in malpractice insurance rates in 2013. Regarding physician/ provider retention in Vermont, there was no change in the retention rate pre-and post-implementation of Act 171 (Lunge & Martin, 2014). Interviews with stakeholders’ post implementation of Act 171 showed a clear majority of responses that there was no difference seen after the implementation of the certificate of merit and pre-suit mediation measures on malpractice suits. The interviews also revealed that there was a lack of awareness of these two measures and “Vermont litigators on both the defense and plaintiff side and others argued that assessing the impact of these reforms at this time was premature at this stage.” (Lunge & Martin, 2014). The Vermont in the Report on Impact of Vermont Malpractice Reform did have recommendations based on the data and interviews that were conducted. The first recommendation was to re-evaluate the impact of Act 171 at a later date to determine the effect the two measures have had on medical malpractice reform. The recommendation was to repeat the analysis on or after February 1, 2017 (note: I could not find that this repeat analysis has been performed yet). Another recommendation was to start
collecting metrics on the utilization of certificate of merit and pre-suit mediation measures. The two-specific metrics that were recommended to be captured were the success rate in reducing malpractice suits from being filed that went through pre-suit mediation and the number of malpractice suits that were unable to be filed because the certificate of merit could not be obtained because there was no merit to the lawsuit. These additional metrics would require that the court system to measure, compile, and track these data elements. The recommendation did not include how to manage this data collection process. The third recommendation made was to increase the awareness of the measures to the stakeholders in Act 171. It was made clear in the interviews that there was a lack of awareness in these measures require of the stakeholders. Physicians and providers were called out as having the least awareness in these new measures and there should be a focus on increasing awareness to this group. The recommendation included that the best way to reach out to physicians and providers is not through state government, but with partnering with state and national medical societies to get the awareness of these new measures out to this group (Lunge & Martin, 2014) essay in here…