Reform Health Care Now: The malpractice liability crisis persists

To obstetricians, gynecologists and many other physicians, one of the most glaring omissions in the current health care reform debate is the failure to address the medical liability crisis. Medical liability has increased the cost of health care and forced many doctors to limit or give up their practices.

Though this has been a contentious issue for many years, will the Democrats finally address the problem, or conveniently sweep it under the rug rather than risk losing the long-standing support of the trial lawyer lobby?

The trial lawyer lobby, not surprisingly, has recently mounted a campaign to convince policymakers that "this doesn't have anything to do with health care," as Linda Lipsen, senior vice president of the American Association for Justice (formerly the Association of Trial Lawyers of America) said to Politico.com.

It does. In my OB/GYN practice, one out of every five revenue dollars I bring in goes towards paying for my medical liability premium. In Florida, the state with the highest premiums, OB/GYN physicians pay an average of $195,000 annually, according to a 2005 study in the journal OBGYN. One in seven obstetricians no longer delivers babies, according to the American College of Obstetricians and Gynecologists (ACOG).

Quite simply, that part of the practice has become unaffordable, not to mention anxiety-producing. ACOG also reports that close to 90 percent of OB/GYNs have had at least one liability claim filed against them, with the average being 2.6 claims per physician. Likewise, half of all neurosurgeons and one-sixth of all physicians are sued every year, according to a 2004 article in the Archives of Internal Medicine.

But the most concerning part of the medical liability crisis is the profound effect the threat of lawsuits has had on the way medicine is practiced in this country. I read an article this week, which quoted Arthur Levin of the Center for Medical Consumers, who said, "Less than 2 percent of the entire cost of the medical system is from malpractice."

This estimate does not take into account the indirect costs that are incurred because, under the current system, physicians are so vulnerable to lawsuits -- many of them without merit -- and soaring medical malpractice awards.

The fact is that the fear of lawsuits has compelled physicians to practice defensive medicine. This was most obvious to me when I left my job at Kaiser Permanente in Northern Virginia and began working at a private practice in Connecticut. At Kaiser, a group of doctors made medical decisions based on evidence-based, "best practice" guidelines for managing a variety of conditions.

In private practice, it was a real eye-opener to learn that many physicians tested more often and performed more procedures than were typically necessary, apparently to appease patients or avoid lawsuits.

In my first year, I learned how things worked when an anxious pregnant patient with twins left my practice because another doctor in the area explained that they would do an ultrasound, as well as other testing, on virtually every visit -- implying that I was providing sub-optimal care.

Over the past nine years, some of my patients have become upset when I refused their requests to order expensive testing for rare diseases, based on information they got from the internet. Patients also demand medications that they see advertised in print and on television as "better and new," regardless of whether less-expensive, older, but equally effective treatments are available. It is clear that making decisions based on patient demand contributes to the spiraling costs of health care.

One of my most disheartening experiences occurred when an attorney gave a lecture on obstetrical care at my hospital. After giving example after example of lawsuits and million-dollar settlements over babies with bad outcomes -- where the care provided, in most cases, had been within accepted standards -- it became clear that the attorney's solution to avoiding lawsuits was to do many more cesarean sections.

He got his wish. The C-section rate in our area now tops 40 percent, and with some doctors it approaches 70 percent -- a statistic that makes me question the definition of "malpractice."

Are the costs of extra testing and longer hospital stays for more C-sections included in Arthur Levin's 2 percent? Not likely. And what are the costs of an extra few weeks of recovery, an increased risk of surgical complications, the pain and trauma of additional procedures and the extra costs often passed on to consumers?

Yet the widespread general perception is that keeping things as they are is a problem that adversely affects only doctors -- not patients -- and allows juries to give awards to victims as they see fit. In addition, ten people could have the exact same bad outcome and the awards would all be different because they are based upon random formulas created by juries. Research has shown that the majority of actual victims don't get compensated.

While the jury system in our country has a long and valued tradition, one proposed solution is to leave decision-making regarding what constitutes appropriate medical care and fair compensation to judges or other professionals. Caps on malpractice awards are another option, but are viewed by many experts as a band-aid approach that doesn't get to the root of the problem.

Instead, the best hope for resolving the medical liability crisis appears to be convincing the public that we would all be better served by the formation of so-called health courts, where compensation judgments would be made outside the regular tort system.

There are efforts underway to move such bills forward in many areas of the country, but until now both state and federal legislatures trying to improve the medical liability crisis have been hamstrung by a variety of factors.

One reason the status quo is maintained is because the trial lawyers make big political donations to secure their influence. It's a strategy that has paid off for some. Former presidential candidate John Edwards made his fortune (net worth: $54 million, according to CNN) as a medical malpractice and personal injury attorney.

Until now, physicians have been no match for the powerful trial lawyers lobby, but medical liability reform needs to be part of the broad reforms coming down the road. Or it needs to be addressed on a state-by-state basis, but that hasn't yet produced significant reforms in most states.

From a cost-saving standpoint, medical liability reform needs to be included to help curb out-of-control health care spending. From the patient's point of view, it needs to be included so we can all rest assured that we're receiving care based on medical evidence, not the fear of a lawsuit.

This is the sixth article in a 10-part series, 10 Reasons to Reform Health Care Now:

Part 1: Syrocketing costs are choking American businesses

Part 2: 87 million uninsured, and growing

Part 3: The economy is making the crisis worse

Part 4: The current system emphasizes quantity over quality

Part 5: Insurance reimbursements make no sense


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