An Ongoing Nemesis

M liability and its effect on the practice of obstetrics and gynecology is one of the most important issues that face the specialty and each practitioner today. As a result, the American College of Obstetricians and Gynecologists (the College) has worked hard to achieve reform, especially at the national level. On five separate occasions during the 110th Congress (2007–2008), the College facilitated the passing of a bill by the House of Representatives that, if passed by the Senate, would have reduced the level of noneconomic liability significantly. In essence, these bills reduced the noneconomic awards that plaintiffs could receive. The bills were patterned after the Medical Injury Compensation Reform Act in California, which mandates a $250,000 cap on “pain and suffering.” Before the Medical Injury Compensation Reform Act, the increasing costs of insurance in California resulted in increased patient costs and physicians moving out of state, culminating in reduced access to ob–gyns for patients. In all five attempts, the bills died in the Senate without even coming up for a vote because there was insufficient support to prevent a filibuster. In the current Congress, which is immersed in health care reform, one of the College’s major efforts is the inclusion of liability reform. At this writing, the only possible prospect appears to be modestly funded demonstration projects at the state level. President Obama, in his presentation to the American Medical Association House of Delegates in June 2009, clearly stated that he would support alternative approaches to liability reform as part of health care reform because he recognized the need.1 However, he stated that this would not include “a cap on noneconomic damages.” Several states have developed and implemented legislation to enact liability reform. The most recent are Texas, where the legislature enacted a $250,000 cap on noneconomic damages, and Oklahoma, where a cap of $400,000 went into effect. On appeal by trial lawyers, the Supreme Court of Texas ruled the legislation unconstitutional. Texas physicians and patients initiated a campaign to pass a constitutional amendment to make the law constitutional. The passage of this legislation has resulted in an increase in liability insurance carriers, reductions in premiums, a decrease in liability lawsuits, and increased access to care, providing evidence that reform can work. As a top priority of the College, the reform of the current liability system in the United States includes both national and state-by-state action plans. The current situation is causing physicians to change their practices, for example, by retiring early, ceasing to provide obstetric care or to treat high-risk obstetric patients, and engaging in defensive medicine.