A hodgepodge of state and federal laws makes it difficult to quantify the likely impact of traumatic brain injuries (TBIs) on healthcare organizations from a legal standpoint. Between 2009 and 2012, at least 41 states passed laws to address TBIs. For example, Michigan has on its books a closed-head injury exception that states that a TBI case must automatically go to a jury trial if a qualified physician testifies there is neurological injury. However, some federal laws seek to supersede those of the state. The U.S. Court of Appeals for the Sixth Circuit in Livonia Shropshire v. Laidlaw Transit, Inc., contended the “automatic” route to a jury for closed-head injury victims is procedural, not substantive, and does not apply in federal court .

The primary federal law regulating TBIs is the Traumatic Brain Injury Act of 1996. As amended in 2008, it authorizes funding to the Health Resources and Services Administration of the U.S. Department of Health and Human Services (HHS) for state grants to improve service delivery and for “Protection & Advocacy” grants to provide client advocacy. The act also authorizes funding to the Centers for Disease Control and Prevention for public education, prevention, and injury data. 

In March of this year, a bill to reauthorize the TBI act was introduced and referred to committee, where it stands as June 20. Bill sponsors believe the reauthorization will elevate the TBI program within HHS by moving the program from Maternal and Child Health’s Children’s Program thus better acknowledging the impact of TBI across all ages. Notably, another reason for changes within the program is, in the words of the sponsors, the need “to better coordinate … and support provisions of the Affordable Care Act.”

Additional legislation also affects the healthcare industry by requiring some insurers, hospitals, and health maintenance organizations to provide insurance coverage for survivors of TBIs. 

For example, Texas requires major insurers to cover comprehensive brain-injury rehab. The state even pays for those who lack adequate insurance for up to six months.

Tort reform is also influencing TBI costs. In California, the Medical Injury Claims Reform Act ensures that future damages awarded to the plaintiffs are reduced to their present cash value. Therefore, a $10 million verdict could potentially be reduced to the $4 million range over time. Although several states now limit damages, issues such as lost wages compensation can still affect settlement costs. 

Malpractice reform initiatives do present some measure of good news, but other factors also must be considered. Legal fees to defend complex TBI cases will be increasing for healthcare organizations. Litigation costs and attorney fees typically account for more than half of settlement costs. What’s more, organizations affected by claims also could see insurance costs increase by 20 percent or more, depending on the judgment. 

Molly L. Farrell is vice president, operations, MGIS Underwriting Managers, Inc., Salt Lake City. Follow her on Twitter @marymol

For more information, see Molly Farrell's: "TBIs: An Emerging Risk for Health Systems", hfm, July 2013

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