New Utah bill sparks the question: How should states fairly handle malpractice suits?
Key Takeaways
The exact requirements for patients or families looking to file a medical malpractice suit vary by state.
Recently, a new Utah bill has brought the spotlight on how states should handle malpractice cases.
Purchasing malpractice insurance is typically when it’s most important for physicians to consider the specifics of their state’s malpractice laws.
Many states have done away with regulations they once had for pursuing medical practice claims. In some instances, these rules were done away with decades ago, but the conversation about these types of requirements is still ongoing in several states, including most recently Utah, where a new bill has promoted the discussion of how to deal with malpractice lawsuits.
The exact requirements for filing and pursuing medical malpractice cases are determined at the state level (unless the case involves a federal clinic or VA hospital). As is true for many legalities in the United States, this results in rules that can be very different from one state to another.
For instance, plaintiffs in 16 states and the Virgin Islands are required to bring their case in front of a panel before it proceeds to trial.[] Proponents of such requirements argue that they help cut down on the number of illegitimate suits brought to trial, encourage settlements, and keep medical costs lower.
As recently as the 1980s, this type of requirement was common in the majority of states. Some, however, contend that these requirements add unnecessary costs, difficulties, and processing delays and that they can violate a patient’s privacy.[]
Utah’s medical malpractice panels
In Utah, a screening panel has been required since 1985, but in 2023, the state legislature passed a bill to remove the screening step for cases of malpractice related to alleged sexual assault by medical providers.[] This has prompted a renewed discussion about malpractice lawsuits in Utah and a call by some for this requirement to be completely removed.
Some of the concern in Utah stems from a lack of data showing that the panel screening process is helpful or that it accomplishes any of its stated goals. In fact, some studies and investigations have concluded that the panels do more harm than good and have recommended ending the practice.
Additionally, because Utah has a population of just over three million — less than many major United States metropolitan area — opponents of panels have stated that members of the state’s medical community are too closely connected to one another for panels to be neutral. It’s likely, for instance, that because the state has a relatively low number of medical professionals, at least one-panel member will have gone to medical school or worked with the physician at the center of the malpractice suit. This, it’s argued, puts patients at a significant disadvantage.[]
The conversation in Utah is specific to the Beehive State, but states around the country have considered similar questions over the years. A good example is Pennsylvania, where sweeping changes were made to malpractice laws in 2003, and both the number of lawsuits and premiums for malpractice insurance have remained low ever since.[][]
However, the discussion isn’t settled in Pennsylvania. Advocates for both patients and physicians have concerns about some of the regulations, and in August of 2022, the Supreme Court of Pennsylvania eliminated a rule stating that plaintiffs may sue only in the county in which the alleged malpractice action took place.[] []
The effect of malpractice lawsuit regulations
There isn’t one ideal state in which to practice medicine. Although certain factors can influence the overall atmosphere for physicians in a given state — as seen in rankings of the best and worst states in which to practice medicine — individual factors, including family connections, community ties, and even climate, geographic, or regional preferences can override more standard and objective factors.
Even when looking into practical factors, things like competition for jobs, average salaries, the cost of living, and educational expenses rank high for physicians when considering where to practice rather than more specific considerations, such as malpractice regulations.
This doesn’t mean that malpractice regulations don’t affect physicians. There are times when it’s important to keep them in mind. David L. Feldman, MD, MBA, CPE, FAAPL, FACS, who serves as the Senior Vice President and Chief Medical Officer of Healthcare Risk Advisors (a New York City–based group offering professional liability insurance to physicians) and as Chief Medical Officer of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer, says that the key time for physicians to consider malpractice regulations and to understand how these rules work in their specific state is when purchasing malpractice insurance.
“It’s probably important for them to understand some of these rules when they are in the process of obtaining their malpractice coverage. Their carrier or broker should review the state regulations with them so they are aware,” Feldman says.
Personal injury lawyer Françoise M. Haasch, based in Palm Harbor, FL, agrees.
“States with stricter malpractice regulations tend to see fewer malpractice lawsuits occur, exposing fewer physicians to legal liability and higher insurance premiums,” says Haasch.
Beyond important logistics, such as setting up and paying for malpractice insurance, Feldman says these various laws won’t come into play during everyday patient care. Although it’s a good idea to know what’s going on in your state and if any changes to these regulations are being discussed, the specifics aren’t something most physicians need to spend much time worrying about.
“Most physicians, I don’t believe, really take the varying malpractice rules into account when treating patients,” Feldman explains. “Once [physicians are] in practice, it is unlikely to be something that they think about.”
No matter what state you practice in, it’s best to take general steps to reduce your risk of malpractice, such as focusing on patient care and clear communication.