The need to rethink and reform the current medical liability system has become a rallying cry for physicians – and neurologists are in the mix. Many have become actively involved in finding solutions by working with state and national medical societies to raise public awareness about the issue – from embarking on organized public relations campaigns to writing editorials in their local newspapers.
In an editorial to the Houston Chronicle, Randolph W. Evans, MD, President of the Harris County Neurological Society in Houston, TX, urged readers to support Texas Gov. Rick Perry's initiative to end the “medical malpractice lottery and appropriately compensate those who are truly victims of malpractice.”
“Each year, about 25 percent of physicians in Texas are named in medical malpractice cases,” he wrote. “About 85 percent are closed with no indemnity payment. I have had three malpractice cases against me in over 20 years of practice and after treating more than 40,000 patients. In all three cases the judge or jury found in my favor, but at a considerable expense.”
THE ROOT OF THE PROBLEM
Some physicians are getting involved by serving on the boards of their physician-run medical liability insurance carriers. AAN President Sandra F. Olson, MD, is on the board of the Illinois State Medical Society Mutual Insurance Company (ISMIE), the state's largest insurer of physicians. Over the past few years, she has seen 21 competing companies pull out of the business or leave the state.
Although this physician-operated company's goal is to keep rates down, it raised rates 35.2 percent as of July 2003. Several factors contributed to this increase, Dr. Olson explained: “From 1997 to 2002, the average total jury verdicts rose 61 percent and, in the same period, the average jury awards for non-economic damages increased 132 percent. From September 2002 through May 2003, the number of new reported cases jumped 36 percent.”
“Although trial lawyers argue that investment losses led to the increase in premiums, in fact, only 2 percent of ISMIE's portfolio is in equity investment,” Dr. Olson said. “It lost 32 times as much from accelerating and massive verdicts.”
Raymond N. Englander, MD, a neurologist in a group practice in Eugene, OR, serves on the board of Northwest Physicians Mutual Insurance Company, a company also owned and directed by its physician policyholders. He also serves on his state and county task forces on medical liability. Although doctors in his state have not yet had to pay personally on an excess verdict, he said the rising number of claims and increased awards have brought this fear to the forefront in Oregon, where the homestead exemption is limited to $25,000.
In excess verdicts, the courts can take your home to sell it to recoup judgments; a person's home or real estate property is exempt from liability for a value limited to $25,000 in the state of Oregon – whereas states like Texas, Florida, Iowa, Kansas, and South Dakota offer unlimited homestead exemptions, allowing people who declare bankruptcy to protect their homes and ranches from seizure.
“Doctors in Oregon are carefully looking at a variety of asset protection strategies, including offshore investments, family corporations, and balancing of family estates, to lessen their exposure to excess judgments,” he said.
ADVERSARIES: WELL ORGANIZED
Dr. Englander, like many doctors who have become active in advocacy in their states, has found that physician groups face well-organized and heavily funded adversaries – plaintiff attorney lobby groups.
“Two years ago, we tried to enact a broad bill, which included product liability and would have allowed a law to re-establish caps on non-economic damages, but we simply did not have the resources to compete with them. We put on a modest campaign to inform the public, and the trial lawyers responded with a flashy television campaign featuring Erin Brokovich with a paraplegic patient advocating against the bill – just after the movie Erin Brokovich was released.”
The next campaign narrowed its scope to limiting the caps on medical liability, but it has been estimated that it will require contributions of $1,000 per physician in Oregon State to execute the public relations effort required to succeed.
HOLDING PEERS ACCOUNTABLE
Some neurologists believe, however, that reform needs to start with self-regulation. Stephen Grill, MD, PhD, a movement disorder specialist in group practice in Columbia, MD, said: “We complain about the abusive malpractice system and blame the lawyers, but we, as physicians, are a big part of the problem – not so much from failing to discipline physicians who provide poor care, but from failing to discipline doctors who make a quick buck through falsely testifying. This drives the system. We need to expose them and shame them into stopping from presenting false testimony.”
Dr. Grill is establishing a nonprofit organization that reviews medical testimony transcripts. These will be peer-reviewed and judged by a panel of experts; the results will be posted on a Web site currently under development.
“If ‘experts’ know that their testimony will be reviewed by real experts who would provide feedback, they might think twice about their statements or reject an invalid case,” Dr. Grill said.
Because of the obstacles in attempts to seek relief through state legislation, many neurologists advocate national reform through the HEALTH Act. Passed by the House of Representatives in March 2003, the bill caps non-economic damages at $250,000, limits attorneys' contingency fees on a sliding scale, allows injured patients to recover unlimited economic damages, and allocates damages in proportion to degree of responsibility.
“We believe it will restore some balance and fairness into a system that is punishing the many citizens who are losing access to health care – especially when their physicians close their doors because they cannot pay the higher premiums or lose their ability to buy medical malpractice insurance,” said Maureen A. Callaghan, MD, a neurologist and President of the Washington State Medical Society. “We need to advocate writing to our Senators to get this, or similar legislation, passed.”
[At press time, the Senate had failed to pass a liability reform bill, but some believed that another version of the bill would be reintroduced in coming months.]
Edward L. Westbrook, MD, Associate Professor of Neurology at the University Hospital of Cleveland and a member of the AAN Legislative Affairs Committee, is hopeful. “What this country needs is tort reform on a major scale,” he said. “Fortunately the mix of the current White House and the needs of business and insurance carriers to get relief from the non-medical legal arena may provide a further catalyst to getting something done.”
REMEDY: SINGLE-PAYER SYSTEM
While some promote malpractice reform legislations, others talk about more fundamental changes. Said Tim Lachman, MD, a solo practitioner in Wynnewood, PA: “I strongly believe that enacting a single-payer national health system would be a major step towards ameliorating the malpractice problem because the awards for medical expenses would be absorbed by the medical health system.” He has joined the Physicians for a National Health Program, an organization that advocates a single-payer universal system as the best remedy for the current health care crisis in the US.
In July, a study by the federal Agency for Healthcare Research and Quality (AHRQ) reported that the supply of physicians and patient access to care is directly related to caps. The study found that states that have enacted limits on non-economic damages in medical lawsuits have about 12 percent more physicians per capita than states without such a cap. The complete AHRQ study is posted online at www.ahrq.gov.
In addition, the AAN would like to create a venue to provide support to members who are defendants in malpractice litigation. If you feel this service would be beneficial, please contact Murray G. Sagsveen, General Counsel and Associate Executive Director, at firstname.lastname@example.org or Dr. Avitzur at email@example.com.
Article In Brief
- ✓ Neurologists are becoming actively involved in reforming the current medical liability systems by working with state and national medical societies to raise public awareness about the issue – doing everything from embarking on organized public relations campaigns to writing editorials in their local newspapers.
FOR MORE INFORMATION ON LIABILITY REFORM
- Summary of state medical malpractice laws: www.mcandl.com/states.html
- Results of the AAN-American Medical Association (AMA) 2003 Professional Medical Liability Survey: www.aan.com/advocacy/federal/index.cfm
- Highlights of the Survey on the Liability Crisis by the American Association of Neurological Surgeons, the Congress of Neurological Surgeons, and the AMA: www.neurosurgery.org/health/news/detail.asp?PressID=191
- AAN Web site links to state and local advocacy: www.aan.com/advocacy/state/index.cfm
- Physicians for a National Health Program: www.pnhp.org