Issue Background

Medical Liability

Reforming The Liability System

The AAOS believes that there is an urgent need to improve patient safety and access to care, decrease defensive medicine and reduce the cost of health care through medical liability reform. Currently:

  • 43 percent of physicians have reduced or eliminated high-risk aspects of their practice and nearly 50 percent of others plan to do so
  • Critical specialists are becoming less available to provide emergency trauma care as specialists face higher medical liability exposure
  • More than 30 percent of orthopaedists, obstetricians, trauma surgeons, emergency department physicians, and plastic and reconstructive surgeons are sued each year. In 86 percent of cases, the jury finds the doctor not negligent, yet the cost of defense can range from $24,000 to $90,000.

The AAOS Believes That The Following Programmatic Components Of Reform Should Be Among Those Considered To Achieve These Principles.

  • Early tender to compensate for economic losses
  • Alternative Dispute Resolution
  • Arbitration; Mediation; Pre-arranged patient-physician agreement
  • Enterprise (the organization, e.g. hospital, and the professionals as an accountable unit) Liability to encourage shared responsibility and system-wide improvement; and eliminate blame and shame
  • “Safe harbor” from liability for following established and approved clinical practice guidelines
  • Medical Courts with specially trained judges to allow a case to be evaluated by experienced professionals in the medical and legal arena
  • Scheduled payments for certain typical injuries
  • Administrative compensation system using an evidence-based and expert-developed predetermined list of compensable injuries resulting from negligent care and compensation amount
  • Modify punitive and National Practitioner Data Bank reporting requirements to provide incentive for open communication, prompt resolution and compensation, and the improvement of patient safety through confidential data collection


The AAOS believes that no federal legislation pertaining to liability reform should include provisions that would undermine effective state tort reform provisions or the ability of states to enact tort reform tailored to local needs. In recognizing that broad reform requires pilots and time before widespread application, it is critical to provide interim relief within the current system through proven measures by state and/or federal legislation, including:

  • A specific per claimant cap on non-economic damages
  • Mandatory offset of collateral sources of payment
  • Periodic payment of future damage awards
  • Establishment of basic requirements to qualify an expert witness in medical malpractice cases and accountability to license board/medical specialty board
  • Expansion of the Good Samaritan laws to allow volunteers and charitable organizations to serve the public without the threat of litigation
  • Shorter duration for the statute of limitations for minors and/or a statute of repose
  • Implementation of a uniform system of several, and not joint liability that holds physicians liable only to the extent he or she is responsible
  • “Safe harbor” from liability for following best practice guidelines