With intense focus on health care reform gripping the country, emergency physicians hope tort reform isn't far behind. So far, though, progress has been slow, and by some accounts, nonexistent.
“I do malpractice case review, and at least in Pennsylvania, there's been no progress at all. It's like shooting fish in a barrel, as far as suing physicians and usually getting a settlement or winning,” said James R. Roberts, MD, the chairman of emergency medicine at Mercy Health Systems in Philadelphia.
Medical malpractice suits often personally devastate EPs, he said, changing their practices so drastically that they become leery about discharging patients, they admit patients out of fear, or order too many tests. “Every doctor practices defensive medicine,” Dr. Roberts said. “The more involved you get with litigation, the more defensive you get.”
Dr. Roberts, also a professor of emergency medicine at Drexel University College of Medicine in Philadelphia, noted some patients are truly wronged by doctors. “I'm very pro-patient, and believe that patients who are injured or wronged should be well compensated,” he said. Frivolous lawsuits, however, are another story.
Seeing no quick fix for these suits, neurosurgeon Jeffrey Segal, MD, founded Medical Justice, a company that offers both prospective and retrospective plans to combat frivolous medical malpractice suits.
Dr. Segal practiced as a neurosurgeon for about decade, and was sued once. “The single expert who testified against me had actually been expelled from our professional society for delivering frivolous testimony,” he said. The case was dropped two weeks before trial, but Dr. Segal was so affected by his experience that he started Medical Justice to create barriers against frivolous lawsuits in the existing legal system.
Medical Justice counts a number of emergency physicians among its ranks, a smart move for them, said Dr. Roberts, because the risky nature of emergency medicine places a large liability burden on EPs. “They have to make snap decisions with minimal judgment, and don't really have preexisting relationships with patients,” he said. “And patients are generally upset to begin with because they've waited, and are in an impersonal environment.”
Emergency physicians also are often held indirectly responsible for the outcome of a case, Dr. Segal said. If an EP refers a patient to a neurosurgeon and a bad outcome results, the EP may be sued along with the neurosurgeon.
In light of the current state of affairs, Dr. Roberts, who is not a member of Medical Justice, said the organization is a “reasonable alternative” because hospitals prefer to settle rather than have the expense of a trial and the bad publicity that goes with it.
As Dr. Segal experienced, some physicians are willing to give “spurious and outrageous testimony to make money,” said Dr. Roberts. “It's a huge windfall. They can charge $400 to $500 an hour to read a deposition. It's obscene.”
Medical Justice is run by physicians, with a mission of trying to defeat “dishonest plaintiffs, unethical medical malpractice attorneys, and unscrupulous expert witnesses,” according to its web site, www.medicaljustice.com. The organization seeks to deter frivolous lawsuits, and will even send a letter to plaintiffs saying it will help defend the physician and possibly even file counterclaims against expert witnesses with their professional societies and state licensing boards.
Plans vary depending on specialty, state, and physician preference, but all members are free to use Medical Justice's patient-physician contract to prevent anonymous defamation on the Internet, which encourages patients to provide valid feedback but allows doctors to remove fictional or slanderous posts. Membership also gives physicians access to the organization's Physician Enlisted Expert Rebuttal (PEER) team, a group of physicians who agree to testify for other members at no cost and allocates up to $100,000 to pursue viable counterclaims.
Services range from $700 a year for a low-risk specialty in a low-risk state to $1800 a year for a high-risk specialty in a high-risk state, according to Shane Stadler, a Medical Justice spokesman. Emergency medicine is listed as a medium-risk specialty, with a range of $940 to $1350 a year.
Beyond providing an interim solution for physicians against frivolous suits, Dr. Segal and Medical Justice have developed a new model of medical liability called HealthCare 2.0. Substantive tort reform would need to go beyond caps on pain and suffering, he said.
“In our estimation, it's not enough,” Dr. Segal said, “because doctors don't want to be sued for one dollar or five million dollars if there is no merit to the underlying case.” California, even with its $250,000 cap, has more malpractice suits than other areas of the nation, he noted.
HealthCare 2.0 calls for patients to transfer their right to sue for negligence to the payer or a neutral third party, and they receive lower health care premiums in exchange. Physicians would be immune from a suit, provided they adhere to physician-developed, cost-effective algorithms for patient care.
Medical Justice has been working mostly with the Center for Health Transformation, a bipartisan think tank founded by Newt Gingrich, on this initiative. “The challenge is not so much to get physicians to deliver the message; it's to get the audience to hear it, and the audience is ultimately the public at large,” Dr. Segal said.
In a Sept. 9 joint session of Congress, President Obama shared his plan that would provide states or health systems one-year grants of up to $300,000 or grants for up to three years of up to $3 million for the implementation and evaluation of evidence-based patient safety and medical liability demonstrations. “I don't believe malpractice reform is a silver bullet, but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs,” he said. “I'm proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.”
Groups such as the American Association for Justice, formerly known as the Association of Trial Lawyers of America, are responding. On Sept. 22, the association launched an ad campaign with the message that tort reform won't lower health care costs. “Americans deserve health care reform that will actually fix our broken system, not force them to give up their legal rights,” AAJ President Anthony Tarricone said in a statement.
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