New directions in medical liability reform.

Medical liability reform has maintained a tenacious hold on the national policy agenda. During the first several years of the 21st century, a malpractice insurance “crisis” prompted vociferous demands by organized medicine and liability insurers for tort reforms to curb litigation costs.1 Many observers anticipated that once the insurance market calmed, so too would calls for reform. Instead, a new force for change emerged — health care reform.2,3 Leading up to the passage of the Patient Protection and Affordable Care Act in March 2010, federal liability reforms were contemplated as a means of garnering support for the legislation among congressional Republicans and medical professional organizations.3 Although no liabilityreform provisions survived in the final bill, Congress made clear the need for more experimentation. The final legislation authorized $50 million for states and health care systems to test new approaches to the resolution of medical-injury disputes.4 This authorization supplemented the $23 million that the Agency for Healthcare Research and Quality (AHRQ) awarded in 2010 for projects to advance new approaches to medicalinjury compensation and patient safety.5 As policymakers’ attention has shifted from winning passage of the health reform bill to determining how to implement and pay for it, medical liability reform has remained a focus because of its perceived potential to help “bend the health care cost curve.”6 Liability risks and costs are often cited as drivers of higher health care spending, poorer access to care, and lower quality of care.6,7 Long-standing criticisms of the tort system’s performance — for example, that it compensates only a small proportion of negligently injured patients while generating unacceptably high overhead costs — and skepticism that it has helped improve patient safety add fuel to the fire.8,9 These developments make it timely to review what is known about the effectiveness of various strategies for liability reform and the implications for the future direction of reform. Historically, liability reform has largely been aimed at reducing insurance costs for health care providers.10 It has taken place almost entirely at the state level and has drawn repeatedly on the same set of legislative modifications to tort law. Today, reform is taking place outside of state legislatures through federal sponsorship of voluntary policy experiments led by hospital systems, liability insurers, and state agencies. The experiments target both liability cost control and patientsafety improvement. This transition is a welcome change in light of a mounting body of evidence demonstrating the limitations of traditional approaches to reform.