LIABILITY CRISIS ENDANGERS NEUROSURGEONS, SURVEY FINDS
Are practicing neurosurgeons becoming an endangered species? Thanks to skyrocketing professional liability insurance premiums, they might be, according to a new survey conducted jointly by the American Association of Neurological Surgeons (AANS) and the Congress of Neurological Surgeons (CNS).
The survey reports that 25 states are in what it calls a “severe” professional liability insurance crisis for neurosurgeons, while 12 states are in a “potential” crisis and only 14 states are currently stable. A severe crisis state either experienced at least a 50 percent increase in premiums from 2000 to 2002 or has average premiums near or over $100,000 for 2002, while a potential crisis state experienced a 25 percent to 50 percent increase in premiums from 2000 to 2002. Nationwide, liability premiums increased by more than 60 percent in the past two years. In some states, neurosurgeons pay in excess of $300,000 per year for professional liability coverage – if they can get it at all.
A number of national news reports have focused on the disappearing obstetrician-gynecologist, as many members of this specialty find themselves forced out of practice by ever-increasing malpractice premiums and the risk of enormous jury verdicts. But neurosurgeons have premiums that are just as high, if not higher, than obstetrician-gynecologists. Many of them are weighing these costs, and the risk of professional ruin posed by just one negative malpractice verdict, and deciding to call it quits. Some 43 percent have or are considering restricting their practices, according to the survey, while another 29 percent are considering retiring altogether. Nineteen percent are considering moving their practices to another state.
“Today, we have fewer than 3,000 board-certified, practicing neurosurgeons for the first time in a decade,” James Bean, MD, a neurosurgeon in private practice in Lexington, KY, and Chair of the Washington Committee of the AANS/CNS, told Neurology Today. “Last year, the American Board of Neurological Surgeons reported that 300 retired or stopped practice. That is almost 10 percent of the board-certified workforce. Many more neurosurgeons are quitting than are replacing them.”
The prospect of multimillion-dollar lawsuits daunts every neurosurgeon. At a press conference releasing the survey results, CNS past President Stephen M. Papadopoulos, MD, recalled his experience being sued after a patient died following complex spinal surgery.
“Going through the motions of a medical malpractice lawsuit was emotionally exhausting. The deposition was humiliating. I remember sitting in that room realizing I was the only one there sworn and obligated to share the truth. The plaintiff's attorney was allowed to propose any theory or supposition without any basis in reality or truth,” he said. “Eventually, I was dropped from the suit. The year-plus ordeal sucked energy away from my life and my practice. The cost was incalculable. The looming threat of another lawsuit lives with me even today,” he said.
LAWSUITS TAKE TOLL
The morning Dr. Bean spoke with Neurology Today, he was preparing to leave for court, to defend against another malpractice lawsuit. “I have been in practice 22 years, and if I had a big award, I'd have to retire,” said Dr. Bean. “Say that you have another 10 years of practice, and you have $1 million to $3 million coverage. What happens if you get an award for $10 million? You're wiped out. Early retirement, for many neurosurgeons, is a simple economic decision to save their families and themselves and their careers from disaster.”
CHASM IN CARE
Malpractice lawsuits are also leading to a vast chasm in neurosurgical care for many states. Mississippi has lost 30 percent of its neurosurgeons in the past two years, and patients frequently must travel out of state to get treatment. West Virginia now has only one Level-I trauma center, in Morgantown; many neurosurgery patients elsewhere must be transferred to Ohio, Virginia, or Kentucky.
“Fewer neurosurgeons are covering hospital emergency rooms and trauma hospitals are shutting their doors and ‘diverting’ patients with serious head and spinal cord injuries to other hospitals,” the survey report states.
“The highest-risk patient is the emergency patient. You have no relationship with the patient or the family. They come in during a high-stress situation with major injuries, you can't get them better, and they look for someone to sue,” Dr. Bean says. “You give up your time to take care of them, and they turn on you and take away everything you've ever had. So you stop taking emergency call.”
The survey also found that many neurosurgeons are no longer performing the most complex surgeries to minimize insurance costs and their risk of catastrophic verdicts. “Brain surgeons are no longer performing brain surgery,” the report observed.
Predicting that frivolous litigation and unchecked verdicts will cripple the health care system, the AANS and CNS advocate a major push for federal professional liability reform legislation modeled after California's Medical Injury Compensation Reform Act, or MICRA. The House of Representatives passed a bipartisan bill to that effect, and it is up for debate in the Senate.
The California law mandates:
- 100 percent payment of economic damages (for lost wages and medical expenses);
- a $250,000 cap on non-economic damages (pain and suffering);
- periodic payments rather than lump-sum awards of more than $50,000;
- elimination of joint liability so each defendant in a lawsuit is responsible for his or her proportion of fault; and
- a reasonable statute of limitations for filing a lawsuit.
PAIN AND SUFFERING
The “pain and suffering” cap is the critical element, Dr. Bean said. “States that have state tort reform, particularly states that have a cap on pain and suffering, are not in crisis,” he said. “In states without reform, we've seen pain and suffering awards of up to $100 million. Nobody makes that much.”
But what about cases in which the “pain and suffering” from legitimate malpractice can fairly be assessed at more than $250,000? Wouldn't such a nationwide cap be unfair in those circumstances? “Those are very rare cases,” Dr. Bean said. “If we continue to allow an unlimited cap for those rare cases, we're going to run specialties out of states and communities as a consequence. Is saving that limited liability for the rare case worth losing neurosurgeons entirely? It's a conflict between community need for service and individual rights to unlimited compensation. If we want to preserve people's right to unlimited, non-economic damages, then the community is going to suffer a loss of service.”
National reform, the AANS and CNS declare, is the only way to provide consistency in liability coverage and present state-by-state crises forcing a patchwork of reform legislation. “We know it works in states that have instituted tort reform, like Louisiana and California. Why do the other states all have to have crises before we put national reform in place?” Dr. Bean asked.
Article In Brief
- ✓ A national survey by the American Association of Neurological Surgeons (AANS) and the Congress of Neurological Surgeons (CNS) found that malpractice premiums for neurosurgeons in 25 states increased by 50 percent or by nearly $100,000 in 2002.
- ✓ In 12 states, premiums rose between 25 and 50 percent.
- ✓ As a result of high premiums, the survey reported that 43 percent of neurosurgeons are considering restricting their practices, 29 percent are considering retiring, and 19 percent plan to move to another state.
- ✓ The malpractice “crisis” has led to a vast chasm of neurosurgical care in some states.
- ✓ The AANS and CNS advocate the passage of legislation modeled on California's Medical Injury Compensation Reform Act.