Damage capitation in the modern liability climate: a primer for neurosurgeons and systematic review of the literature

Abstract

OBJECTIVE Neurosurgery, and particularly spine surgery, is among the most highly litigated medical specialties in the US, rendering the current malpractice climate of primary importance to spine surgeons nationwide. One of the primary methods of tort reform in the civil justice system is malpractice damage capitation (or "caps"); however, its efficacy is widely debated. The purpose of this article is to serve as a review for the practicing neurosurgeon, with particular emphasis on short- and long-term effects of damage caps and on the current debate regarding their utility, based on a systematic review of the literature. METHODS The Meta-Analysis of Observational Studies in Epidemiology (MOOSE) guidelines for systematic review of observational studies were used in the design of the study. Multiple medical and legal online databases (MEDLINE, Scopus, EMBASE, and JSTOR) were queried using the key words "malpractice" and "damage capitation" for articles from 2000 to 2014. A total of 96 abstracts were screened for inclusion and exclusion criteria. Of these, 22 articles were reviewed in full and another 15 were excluded for study design or poor quality of data. Five more studies were added after cross-checking the bibliographies of the included articles. The resulting 12 articles were evaluated; relevant data were extracted using a standardized metric. RESULTS Five studies were found showing varying effects of capitation on physician availability, with only 1 of these specifically showing increased availability of neurosurgery and elective spine coverage in states with capitation. Four studies demonstrated that capitation overall succeeds in decreasing jury awards and frequency of claims filed. Last, 3 studies were found showing an overall decrease in malpractice premiums for states that passed damage capitation. CONCLUSIONS There is evidence in the literature showing that total and noneconomic damage capitation has the potential to improve the practice environment for neurosurgeons nationwide. Additionally, there are other factors that affect malpractice premium rates, such as the investment markets, which are not affected by these laws. All of these are important for spine surgeons to consider and be aware of in advocating for appropriate reform measures in their states.