"The medical liability system is melting down"

AMA leaders speak candidly about the organization's No. 1 priority during an interview with Medical Economics editors.

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Is the AMA doing enough to get effective tort reform?

Two top AMA officials—Yank D. Coble Jr., the organization's president, and Donald J. Palmisano, its president elect—recently went on a barnstorming trip to raise awareness about the need for tort reform, the AMA's top legislative priority. They've met with journalists across the country and gone on the television talk show circuit to push for HR 5, a bill introduced by Pennsylvania Republican Rep. James C. Greenwood that would enact reforms similar to California's MICRA law. The main feature of that law, which has stabilized insurance premiums in California over the past 27 years, is a $250,000 cap on noneconomic damages.

On a snowy Friday last month, Coble, an endocrinologist in private practice in Jacksonville, FL, and Palmisano, a general surgeon and attorney based in New Orleans, stopped by Medical Economics to forward their message. Here are some of their comments about malpractice, access to care, and patient safety.

Medical Economics:What do you think the likelihood is that HR 5 will pass or that it will work if passed?

Palmisano: We believe that the medical liability system in America is broken and is melting down at this very moment. If it doesn't get fixed, no one will be able to say that American medicine didn't warn about the consequences.

Twelve states are in crisis. The bottom line is our concern about access to care for patients. We find doctors retiring early; limiting their practices in various ways, such as giving up obstetrics; or moving to a state with a more stable climate. Trauma centers have closed.

The AMA has recommended since 1989 that the California model be adopted nationwide. It allows full recovery for medical treatments, rehabilitation, lost wages, and all of those economic damages. But it imposes a reasonable cap of $250,000 on noneconomic damages. Those are the "pain and suffering" damages that are difficult to quantify.

California had malpractice premiums as high as any other state in the nation back in 1975, when MICRA was passed. Over the past 27 years, malpractice rates have risen 167 percent in California, and in the rest of the nation an average of 505 percent. So we believe it's a model that works.

A new Gallup poll shows that 72 percent of Americans support limiting awards for emotional "pain and suffering." An overwhelming 74 percent consider the issue of medical liability insurance in health care today to be a crisis or major problem. So we believe the American public will turn the tide.

Coble: In Florida, we passed a cap on noneconomic damages a few years ago, and it got ruled unconstitutional. So it's understandable that the insurance companies can't predict exactly what the caps are going to do until they know if they'll be upheld. Even if we get tort reform passed, it may not have an immediate dramatic effect; it does take a little bit of time.

Also, once legislation is passed, a huge flurry of suits is filed just before the new law takes effect. So the cap won't apply in those cases. It may take some time before rates come down. We shouldn't expect magic to occur overnight. But if we don't act now, things will just get worse.

Medical Economics:You mention problems with access to care. What sorts of stories are you telling folks in Congress and the lay press?

Palmisano: I recently visited Wheeling, WV, and a physician told me of a 9-year-old boy who was knocked unconscious during a football game. He was out for only a minute or two, and the physician told his mother that he'd need to be observed after a CT scan or MRI because there's the possibility of a bleed. But the hospital no longer had a neurosurgeon who handled trauma. So the doctor needed to call for the air evac to take him to a hospital in Ohio or Pennsylvania. And 30 percent of the time, the air evac can't fly because of adverse weather conditions. This doctor told me the child's mother looked at him in disbelief and said, "I don't understand. I have never been out of Wheeling in my life, and you're telling me I have to go to another state with my baby?"

Then there's the nurse in Bisbee, AZ, who has to pass up her own hospital when she is in labor because physicians there have given up obstetrics due to the malpractice crisis. She ends up delivering in a car, trying to get to the next town.

Doctors walk up to us and say, "Please tell me what to do. I went into medicine to help people, but I can't afford my malpractice premium. I can't wait four or five years for the system to be reformed. I need help right now to stay in practice."

Medical Economics:Liability issues are the AMA's No. 1 concern right now, but you've said that health system reform (coverage for the uninsured, a Medicare drug benefit, etc.) is your second priority. The public's heard a lot about safety issues and the nursing shortage. Care to comment?

Coble: This is a critical problem for our country. There was a recent article regarding safety in hospitals. The authors polled both physicians and the public about their experiences. Both groups reported that in approximately one-third of their hospitalizations, there was a significant system error. Both agreed that supporting the nursing staff was one of the best things we could do to improve the situation. Doctors said having a good nursing staff is more important than computerized order entry or electronic medical records.

I agree. When I went to the hospital to have my hip surgery, the most important thing for me to check on was the nursing staff. My main questions: How many nurses did the hospital have? Was there continuity of care, or was the hospital using temps day after day?

I advise all my patients, before they go into the hospital, to take somebody with them. A friend or relative will increase safety more than anything else, especially in these days of a nursing shortage. That also applies to physicians when they become patients. You don't think the same way when you're the patient. You need somebody there, objectively asking nice polite questions, seeing who is coming in the room and asking what their names are, writing them down, asking them what that medicine is and writing it down. That goes a long way toward preventing errors.

Palmisano: The AMA was committed to patient safety long before the Institute of Medicine report came out. We give over $1 million a year to the National Patient Safety Foundation. We've invited the trial lawyers who are always talking about bad doctors to match our donation if they're in favor of patient safety! Some of these big awards could certainly put some money into the National Patient Safety Foundation!

 

Mark Crane. "The medical liability system is melting down". Medical Economics 2003;6:49.