Doctors Take Issue With Malpractice-Cost Findings
Medical establishments in Westchester contend that a recent Health Affairs study that found malpractice awards have not grown substantially over the years has been based on inaccurate data.
“That study was inaccurate and invalid, according to the General Accounting Office. If they look at all of the facts – the average malpractice verdict has substantially risen in the past seven years,” said Stuart A. Hayman, executive director of the Westchester County Medical Society.
“The reason that this study is flawed is that it is based upon all types of physicians and did not segregate its conclusions by specialty,” said Dr. Michael Rosenberg, a plastic surgeon who practices in Mount Kisco and White Plains. He is also the president of the medical society.
The study contended that the average malpractice payment grew 4 percent per year from 1991 to 2003 and leveled off more recently, reflecting increases in medical costs. It also said the number of malpractice payments from trials and settlements remained stable during this period.
FEW CASES GO TO TRIAL
The physicians’ strong reactions to the study indicate that the doctors did not read the study, but just reacted to it, said Amitabh Chandra, lead author of the study and professor at Dartmouth College.
“We are neither antidoctor nor prolawyer. In the text of the study, we dealt with the questions surrounding the basis of our data and answered them. Our study showed that 96 percent of all malpractice cases never go to trial and are settled out of court,” Chandra said.
In fact, the large jury awards that attract so much attention are rare events and are actually a small percentage of all malpractice payments, Chandra said. “We conducted this research as concerned citizens, not because we favor one group over another.
“We are not disputing that malpractice insurance premiums have exploded over the past few years. This study had nothing to do with what physicians pay for malpractice insurance,” Chandra said.
However, Chandra said he believes that rising malpractice premiums are due to two factors: insurance companies’ administrative costs for fighting claims have risen; and insurance companies have lost a lot of their investment money in the stock and bond markets in recent years. As a result, they need to charge higher premiums to cover their costs.
DOCTORS CITE DIFFERENT STATS
Yet, the physicians groups hammer their viewpoints with their own statistics. According to the Physicians Insurance Association of America, the average verdict in malpractice cases soared from 1997 to 2004, with the average jury award increasing from $347,000 to $607,000, or 75 percent. The malpractice awards exceeding $1 million have practically doubled over the period to 7.5 percent, Hayman said.
Many insurance companies that offer malpractice insurance have dropped this type of coverage because it is no longer profitable. One of the leading malpractice insurers in the nation, St. Paul’s, has dropped offering this type of insurance. In New York state, only three companies continue to provide malpractice insurance, he said.
PHYSICIANS LEAVE NEW YORK
“In 2003- 2004, seven of the 10 largest malpractice lawsuits occurred in New York state. In upstate New York, there has been an exodus of physicians to other states where there is a cap on damages due to pain and suffering,” Hayman said.
New York City and Westchester County have been luckier in keeping their physicians, despite the high cost of malpractice insurance premiums.
“A large city and its metropolitan area will always attract the best and the brightest medical candidates because of the medical institutions,” Hayman said.
Malpractice cases deal typically in three types of awards in each legal case. The first is for medical damages due to a physician’s error and meant to pay for continuing medical cam. The second award is for economic damages due to the potential lost income that person could have made in his or her lifetime had the injury not occurred. The third is for pain and suffering that the injured party endures.
“Please understand that physicians are not advocating terminating payouts based upon medical errors or the economic damages. No one is tying to cap those. What they are against is the arbitrary award for pain and suffering, which cannot be quantified,” Hayman said.
“If someone is injured due to an error, we expect them to be reimbursed fully for their care. But the third award – for pain and suffering – is intangible,” Rosenberg added.
OB-GYN HIT THE HARDEST
The types of physicians most at risk for malpractice lawsuits are surgeons and obstetricians-gynecologists. One such obstetriciangynecologist Dr Frank LaBarbera, a sole practitioner affliliated with White Plains Hospital, said he has been greatly affected by increased malpractice insurance premiums.
“When I first started out 19 1/2 years ago, I was paying well under $20,000 a year, and now my premiums are $100,000 a year. I cannot charge my patients more because managed-care plans tell me what are reasonable costs for each procedure and because I am in practice for myself, I cannot substantially increase my client base. I may a get a break for enrolling in some risk management courses, but basically I am stuck,” LaBarbera said.
It takes the average OB-GYN in Westchester County, approximately 43 complete deliveries, from prenatal to postdelivery care to cover his or her malpractice insurance costs, Rosenberg said.
LaBarbera said he would choose to move to another state that caps malpractice damages and where managed-care plans reimbursed physicians better, if his children were not well established in area schools. He cannot uproot their lives, he said.
The study did find that between 1991 and 2003, states that have capped awards for pain and suffering have also attracted more doctors into practice. In all, 27 states have laws limiting potential damages in malpractice lawsuits.
The whole malpractice nightmare has made physicians learn to practice “legal medicine,” LaBarbera said.
“The number of procedures that doctors recommend and do today is totally absurd. Men someone walks through the door with a possible problem, medical practitioners have learned that just to cover themselves from a potential lawsuit, they order tests and insist upon more consultations. This just drives up medical insurance costs,” LaBarbera said.
UNNEEDED TESTS COST BILLIONS
According to the Center for Legal Policy, unnecessary medical tests and constant referrals to specialists for second and third opinions costs an unnecessary $60 billion to $100 billion.
LaBarbera said it has been a decade since he has spoken to a “happy”OB-GYN. Many of his older colleagues have retired early and others have stopped delivering babies all together. In fact, he points out that less than two-thirds of all OB-GYN residencies in the United States last year were filled by Americans.
“Realistically I am facing the fact that the high costs of malpractice premiums will eventually drive even me totally out of the business,” LaBarbera said.
“Unfortunately, the end product is that it is the patients who ultimately will suffer from this. We have reached a crisis and certain specialties cannot absorb the high costs anymore,” Rosenberg said.
Putting a cap on these “malpractice-lottery” awards would be a good start, he said, but it is like putting a band-aid on a wound, LaBarbera said.
“You really need a specialized medical court that would hear these cases. I’m not against going after bad, dangerous, unethical physicians, but malpractice cases rarely involve those people,” LaBarbera said.
TORT REFORM IS NEEDED
Tort reform for the noneconomic damages is definitely needed, said a representative of the Medical liability Mutual Insurance Company of New York, which insures more than 60 percent of all physicians in the state. This insurance company is a mutual company primarily owned by physicians.
“In California, a very litigious state, where there is a $250,000 cap on damages for noneconomic damages (for pain and suffering) in malpractice cases, premiums are less than half what doctors pay here,” said Donald Fager vice present of the Medical Liability Mutual Insurance Co. in New York City
For example, the average malpractice insurance rate for a neurosurgeon in Westchester County is $160,000 per year, and the average rate for an OB-GYN in Westchester is about $97,000, according to Fager. Malpractice insurers have requested another 30 percent increase this year, but the state insurance commissioner will determine whether that will be allowed July 1. In most previous years, the commissioner has orgy allowed between a 6 percent and 7 percent increase.
In California, which has had a cap since 1975, annual premiums for surgeons ranged from $14,000 to $42,000. The average malpractice premiums for OB-GYNs ranged from $23,000 to $72,000, according to Health Affairs statistics.
“It is unquestionably much harder for doctors to run their practice here (Westchester County) with these NO premiums. Putting a cap on these types of damages would help in the short term,” Fager said.
It is not an increased number of malpractice claims that has caused the problem, but the greater severity of thew claims, Fager said.
MALPRACTICE AWARDS OR LOTTO?
“S\ome final (malpractice) judgments have no basis in reality More is spent on litigation, then on the compensation to the (injured) claimant,” Fager said.
“We call these huge multimillion malpractice awards malpractice lotto,” Hayman said.
Many of the largest payouts involve babies born with neurological deficits. Studies have shown that a certain small percentage of babies will be born with these impairments, no matter what the prenatal care or the obstetricians delivering the babies, Fager said.
NO RELIEF ON THE HORIZON
While these disabilities are definitely unfortunate, once a case. involving a baby goes to court and gets before a jury, the sky is not the limit for these emotional cases, which produce hefty catastrophic multimillion dollar awards, Fager said.
“In the long term, there has to be a better way to compensate the injured and still take care of these unfortunate cases,” Fager said.
Despite several attempts in Congress to pass a bill capping damages awards in medical malpractice cases, none has succeeded. In the past two years, the House of Representatives has successfully passed these types of bills to enact malpracticeinsurance caps on pain and suffering. However, the bills have never been passed in the Senate with enough votes to prevent a filibuster.
At the state level, the same type of deadlock exits, with different parties controlling the Senate and the Assembly, Rosenberg said.
Despite many tries, no malpractice cap bill has passed, Rosenberg said. “It is because there are many more lawyers in politics than there are physicians.”
“Physicians have to get politically savvy. We need physicians and advocates of physicians who are willing to become part of politics. We need a doctor in the House and a doctor in the Senate,” Rosenberg said.
Beyond that, the state should allow a voting referendum question to be put on the ballot and appeal to the public. Tort reform has worked in Florida and in Texas, where after caps were placed on malpractice awards, malpractice insurance premiums went down by 17 percent.
“Everyone needs to wake up. When doctors have trained for a specialty and do it well, but cannot practice because of the high insurance premiums, then we have arrived at a ridiculous state of affairs,” Rosenberg said.
Copyright Westfair Communications Jun 13, 2005