Nancy R. Terry
"It's indisputable that we need tort reform. Malpractice insurance is eating us alive," says a physician.
"I come home literally every night afraid to open the mail," reports a psychiatrist. "Cut my income to the bone and I'll
still try to carry on. But, keep holding me responsible for every unfortunate event within arms reach, and I'm out of here."
Soaring malpractice premiums and the constant threat of litigation have doctors rallying for reform. On Medscape's Physician
Connect (MPC), a physician-only discussion group, doctors decry the need for malpractice reform and explore alternatives to
the present tort system.
The State of Things
"Within the health care industry, there is a nearly universal belief that malpractice litigation has long sincesurpassed
sensible levels and that major tort reform is overdue." So begins a review article by Studdert and colleagues[1]
published in 2004. Five years later, malpractice insurance premiums in some states continue to rise at a punishing rate. A
recent report issued by the New York County Medical Society says that New York physicians have experienced a 55% to 80% increase
in premiums over the last 5 years.[2] In August of 2008, New York's Governor David Paterson placed a 1-year freeze
on medical malpractice insurance. Even in view of the governor's freeze, the New York County Medical Society reports that
this year, malpractice insurance will top $300,000 for a Long Island neurosurgeon and $170,000 for an obstetrician/gynecologist
in Brooklyn.[3]
If malpractice premiums are burdensome, the medical tort system is a less than efficient means of medical compensation.
A study by the Harvard School of Public Health found that for every dollar spent on medical compensation, 54 cents goes to
administration expenses, including lawyers, experts, and courts.[4] The same study noted that in more than 1 in
4 malpractice suits, a patient was awarded payment where no negligence was committed or a patient was not awarded payment
where there was negligence.
"Our malpractice system rewards all the wrong people -- lawyers who may be less than scrupulous and bad physicians," says
a pathologist. "Good physicians pay higher malpractice rates to let the insurance companies keep up their profit margins while
not acting against the multiple offenders they cover." Several MPC contributors suggested that insurance premiums be rated
on the basis of past record, so that those physicians who make the most mistakes pay the highest premiums.
Medical Review Panels to Weed Out Frivolous Cases
The approach to tort reform most advocated by MPC contributors is the establishment of state review panels that rule on
the merits of a proposed malpractice case and weed out frivolous cases. Currently, this system is in place in a number of
states including Texas and Ohio.
"I live in Indiana, and [we] have a workable malpractice law," says a radiologist. In Indiana, the medical review panels
consist of 3 physicians and an attorney moderator, who review all cases and submit opinions on the basis of the standard of
care. "Most cases where the physician is found to have met standard of care are dismissed, while those in which the physician
does not meet standard proceed to trial. We also have a cap on awards. The law seems to work. Our malpractice premiums are
a fraction of [those of] surrounding states."
Louisiana has a similar mandatory review system. "If the case does not pass the smell test with the panel," says an MPC
contributor, "it is dismissed. If this [approach] were adopted in all states, the rate of frivolous lawsuits would decline."
In some states, however, review panels are ineffective. A gastroenterologist says, "In Massachusetts, 90% of cases get
past the tribunal. All the plaintiff needs is any doctor to say the case has merit, and it moves forward. In Massachusetts,
an expert witness can be from any specialty, which is totally absurd."
"In Utah," says a general surgeon, "the plaintiff sues anyway, regardless of the panel's decision. The insurance company
settles to avoid further expense. Malpractice premiums increase."
MPC contributors commented on ways in which the system of medical suit review could be strengthened. One MPC contributor
suggested that cases found to have merit but no evidence of negligence should be bound to mandatory arbitration, and only
those cases in which arbitration failed would proceed to trial. Several contributors recommended that the plaintiff be required
to post bond for the defendant's expenses in trial cases not involving negligence. Some thought the panel should rule on the
maximum amount for which the plaintiff could sue. Others suggested that physician experts be board certified in the subspecialty
appropriate to the case and appointed by the court to ensure impartiality.
A No-Fault System of Compensation
Some MPC contributors advocated taking medical malpractice compensation completely outside the civil justice system.
"I would truly prefer a no-fault compensation system," says a gastroenterologist. "I would not mind paying my malpractice
premiums nearly as much if I knew the majority of the money was going to victims and their families."
Medical no-fault systems, which are similar to workers compensation programs, do not require proof of negligence, only
proof of injury. The national Vaccine Injury Compensation Program of the US Department of Health and Human Services is a no-fault
alternative to the tort system. On the state level, Florida and Virginia have legislated no-fault compensation programs for
children born severely impaired by neurological injuries sustained during the birthing process. The Florida and Virginia programs
are capitalized by annual assessments from participating physicians and hospitals.
"A no-fault system is exactly what I think we need," says an MPC contributor. "The result is good on so many levels. [There
is] compensation for bad outcomes, yet a less adversarial relationship with the doctor. If there is a bad outcome, [it is]
more like managing a complication than placing blame." The contributor also points out that a no-fault system would lower
the incidence of defensive medicine, in which physicians order more tests than necessary to protect themselves against accusations
of negligence.
Fighting the Good Fight
MPC members recognize that tort reform, in whatever form it takes, will meet with resistance. "Greedy attorneys will fight
against this with all their might," says an orthopaedic surgeon.
"And yet," comments another MPC contributor, "we hold the keys to the whole thing because only we have the license to practice
medicine."
A general surgeon suggests a bold strategy. "The only way to convince the culprits that we are serious is to organize a
doctor's strike to all the emergency rooms." The surgeon comments that the authorities could be notified that the strike would
take place within 8 months unless specific reform measures were initiated. Such action, he comments, would draw media attention
and pressure legislatures to take action.
"We need to [be] educating the public about just what an industry malpractice is for the attorneys," adds another surgeon.
"This broken system needs to be fixed and we have to fix it."
To view the entire MPC discussion, see Proposal for Malpractice Tort Reform, at http://boards.medscape.com/forums/.29f1c5bb.
View this and other discussions in Physician Connect (physicians only; click here to learn more).
