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Cover Story plastic surgery a while back in order to reduce the cost of my insurance premium.” While Anderson has never been involved in a lawsuit himself, he says that most physicians have come to see it as being inevitable. “I’ve not had any claims filed against me, but that will come,” he says. “If you practice long enough, you’re going to get involved in a legal situation, there’s no doubt about that.” In addition to physician migration and patients losing ready access to certain specialists and procedures, Poist sees an even more troubling consequence of rising insurance premiums. “What message are we sending the young medical students who are coming up through the ranks?” he asks. “If we’re giving them a choice between going into a specialty that will cost them $200,000 a year in liability premiums and another that will only cost $30,000, there’s a significant risk that fewer students will enter OB/GYN and neurosurgery and opt for ‘less risky’ specialties— which would leave a wide gap in medical care.” Poist points to match-day results for 2003 in which 1,151 OB/GYN residency positions were available and only 1,050 were filled. “In my particular field, my fear is that there will come a time when we won’t be able to render medical care in rural areas,” he says. “Clinics in those areas will basically be shut down, and women will no longer be able to receive local obstetrical care.” Morawetz predicts similar problems for the country’s growing elderly population, who rely heavily on Medicare to cover their health-care needs. “Already about 20 percent of the physicians who practice internal medicine around the country are seeing fewer Medicare patients because reimbursement levels cause them to lose money on every patient they see,” he says. “So if liability premiums continue to rise, there’s going to be increasing pressure on physicians not to see Medicare patients. Then it won’t be long before they won’t be able to find a doctor to take care of them.” FEDERAL REGULATION KEY In light of these circumstances—and with battles being fought on 50 different fronts by state medical associations, such as the task force on tort reform that was recently put in place by the Medical Association of the State of Alabama— many physicians are rallying for federal intervention. The American Medical Association has made liability reform its top legislative priority for “I practice general otolaryngology, and I stopped doing facial plastic surgery a while back in order to reduce the cost of my insurance premium.” — J. Noble Anderson Jr., M.D. 2003, citing statistics showing that 78 percent of Americans are concerned that rising medical liability costs will hinder their access to health care. “The AMA has designated 18 states as having a crisis, with 26 additional states showing significant problems,” says Anderson. “I think that the AMA’s lobbying efforts are partially responsible for the bill that was recently passed in the House regarding tort reform, which also has the support of the president. It’s in the Senate right now, so there’s no telling how it will end up. But if they should pass this bill, it would help minimize frivolous lawsuits that all physicians potentially face, and it would bring premiums down since exposure to malpractice suits would be lowered.” Anderson admits that the bill’s chances of being passed are fairly low, in part because of formidable opposition from trial lawyers. “Their argument is that liability premiums are high due to the weak stock market, not because of these multimilliondollar verdicts, but I just don’t agree,” he says. He points to a recent situation in which a Virginia-based insurance carrier that provided liability coverage in the state of Alabama went out of business, leaving many of the state’s physicians scrambling for shelter. “From what I’ve heard, about 50 percent of that insurer’s income was derived from doctors in Alabama, but they were making tremendous payouts in adjoining states, and that’s where they lost all of their money,” Anderson says. “That’s why I think these outrageous awards that juries are giving out play a more important role in some insurers’ well-being than what’s happening in the stock market.” Morawetz agrees that trial lawyers play a crucial role in the dilemma, at both the state and federal levels. “I think the only answer—the only possibility I can see, at least—is national legislation, because trial lawyers have such enormous influence over members of state legislatures that getting anything passed at that level is highly unlikely,” he says. “At the same time, tobacco and asbestos litigation has put tremendous amounts of money into the coffers of trial lawyers and their organizations, and they’ve used those funds to 8
Cover Story support political candidates who are willing to block tort reform and caps on liability awards of any kind, especially in medical liability cases. So I’m not very optimistic about that possibility, either.” Other possibilities, such as bringing patients on board by making them aware of what they stand to lose, are also being explored. In fact, the AMA has established the Patient Action Network specifically so those who stand to lose the most can add their voices to the national dialogue. Morawetz still is not much moved. “I have to admit that I’m a bit pessimistic about that, too,” he says. “I believe that the public will only respond once a crisis in medical care actually arrives—when they’re not able to access the care they need. That’s what’s going to precipitate change, and probably nothing short of that.” SHELTER FROM THE STORM The media play a role in all of this, broadcasting million-dollar judgments awarded to patients who have filed suit against their doctors—sometimes fairly and sometimes not. This has led to a litigious, reward-seeking mindset, says Poist, and physicians are especially susceptible to such claims. “I don’t mean to sound pessimistic, but in many ways, I think the golden age of medicine is behind us, and we’re well into the tin era,” he says. “Still, what we have to do as physicians is try to reenergize ourselves, to carry the message to today’s medical students that this is still an attractive “I don’t mean to sound pessimistic, but in many ways, I think the golden age of medicine is behind us, and we’re well into the tin era. Still, what we have to do as physicians is try to reenergize ourselves, to carry the message to today’s medical students that this is still an attractive field, that it’s very rewarding from a professional standpoint, and that we’re still able to make ends meet. But I’m afraid that in five years— and maybe a lot sooner than that—we’re not going to be able to say that in this state.” — Michael Poist, M.D. field, that it’s very rewarding from a professional standpoint, and that we’re still able to make ends meet. But I’m afraid that in five years—and maybe a lot sooner than that—we’re not going to be able to say that in this state. “I feel that I’m still able to do what I love to do, which is to practice medicine, and none of these issues have yet diminished my ability to perform obstetrics and gynecology to the best of my ability. But I know the storm is coming, and I know it’s going to be a strong one. I wonder, once I put my umbrella up, will it be enough? Will we, as physicians, be able to protect ourselves from this major deluge of wind and rain that’s definitely headed our way?” UPDATE: On July 9, 2003, the U.S. Senate voted to close further consideration of the Patients First Act of 2003 (S.11), a bill to protect patients’ access to quality and affordable health care by reducing the effects of excessive liability costs. The Act would have made changes to the health-care liability system—including setting forth requirements and permissible recovery amounts for compensating patient injury— and would have provided a real opportunity to help remedy the problems being faced by doctors in the United States. Despite this setback, the Senate hopes to soon craft a bipartisan proposal for reform and revisit this important issue in the near future. Tales from the World of Torts • According to Medical Malpractice: Verdicts, Settlements, and Statistical Analysis, from 1994 to 2000, the median award of $2,050,000 for medical negligence in childbirth cases was the highest for all types of medical malpractice cases analyzed. • From 1999 to 2001, the median medical liability award jumped 43 percent, from $700,000 to $1 million, and it has doubled since 1995. • From 1996 to 2000, the number of medical liability claims rose 5 percent nationwide. During that same five-year period, some states saw increases of 40 to 97 percent in the number of medical liability lawsuits. • Mega-verdicts are on the rise: In 1999-2000, more than half (52 percent) of all awards exceeded $1 million, compared to 34 percent from 1994 to 1996. Since 1995, there have been 21 verdicts in Mississippi of $9 million or more, including a $100-million award. • Physicians’ fear of lawsuits contributes to the rise of defensive medicine and increases the cost of health care by an estimated $60 to $100 billion per year. • In a national poll, 74 percent of physicians admitted to referring patients to specialists more often than medically necessary; 79 percent acknowledged ordering more tests than medically necessary; and 51 percent were more likely to order an invasive procedure such as a biopsy due to concerns about liability. Figures compiled by the American College of Obstetricians and Gynecologists 9
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