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By Donald J.
Palmisano, MD, JD
President
American Medical Association |
"Danger
invites rescue. The cry of distress is the summons to
relief."
Judge
Benjamin Cardozo, who later became a United States Supreme Court Justice, first
spoke these words in 1921. These words still ring true today, as cries of
distress summon us to rescue our health care system from a number of
devastating problems. These include: a health insurance system that leaves more
than 41 million Americans without coverage; a fatally flawed physician payment
formula that threatens the foundation of Medicare; unreasonable - and unfunded
- government mandates and rules; delayed, denied and down-coded claims; and
diminished time for patients due to paperwork.
Above all, we have a medical liability
system that defies common sense and reason. Our liability system threatens to
push many physicians out of high-risk services. This system that has already
thrust 19 states - and more than half of America's patients - into a full-blown
crisis.
This
liability crisis puts all patients at risk, especially those who have the least
access to care, such as patients who live in underserved communities. For their
sake, and for the sake of all patients, we must address this crisis now.
Together. Before it gets even worse.
Achieving necessary reforms will not be easy. In
July, a minority of United States senators thwarted the will of a majority of
the American public regarding the need for federal action in addressing the
medical liability crisis in this country. In a procedural vote, the Senate
suspended further action on the Patients First Act, Senate Bill 11 (S. 11.)
Even though poll after poll shows that Americans support the reforms contained
in this bill, including a cap on non-economic damages.
But even as this crisis rages, the ground is
shifting. Because at least now, no one is denying that a crisis exists, and
more and more our political leaders understand that physicians are offering a
proven solution.
To understand the need for such a solution, it is important to
understand the extent of the liability crisis in this
country.
The AMA
considers it a crisis when a pregnant woman is in labor and distress and no
obstetrician is available. Or when a 9-year-old boy has a head injury but
there's no neurosurgeon remaining in his area. This is happening to the
patients we care for and care about across the country.
Last summer, the only maternity ward
in South Philadelphia shut its doors due to medical liability costs. Today, not
one hospital in South Philly delivers babies, and seven of 39 maternity wards
have closed, or are about to close. An exodus of physicians out of Pennsylvania
is also taking place, especially among high-risk specialists and newly minted
M.D.s. One of the physicians who fled the Keystone state compared his decision
to fleeing a burning building. Pennsylvania physicians are not alone. Other
physicians around the country are pulling up stakes, dropping or reducing
high-risk services, or even taking early retirement.
In South Texas, a pregnant woman
showed up in a physician's office just 10 minutes from delivery. She was trying
to drive 80 miles to her doctor in San Antonio because her original physician
had stopped delivering babies.
Twenty-five of Mississippi's 80 counties have fewer physicians
today than they did in 1990 - and 21 of those counties have 10 or fewer
physicians. This loss of physicians is devastating to rural and underserved
communities, as pediatric specialist Kurt Kooyer, M.D., can attest. He left the
small town of Rolling Fork, in the Mississippi Delta. He was fed up with a
legal system that allowed lawyers to file suit against him - without his
patient even knowing it. Dr. Kooyer was the only pediatrician among Rolling
Fork's three physicians. He arrived in 1994 and was responsible for the infant
mortality rate falling from an average of 10 deaths per 1,000 live births to
3.4. Today, Rolling Fork no longer enjoys his services. Today, Dr. Kooyer lives
in North Dakota, a state with a better liability climate.
Volunteer physicians - who are often
retired - have also found themselves thwarted in their efforts to help the
underserved. Last year, I had the privilege of meeting with President Bush and
others in High Point, North Carolina, to discuss the medical liability crisis.
One of the physicians I met there was a retired physician, dedicated to
volunteer work. He told us how retired physicians struggled to find affordable
coverage so they could treat the uninsured, the indigent and the
underserved.
At
another meeting I attended, at the Brookings Institution, a doctor who helped
create a free clinic told how that clinic was thwarted by the weight of the
medical liability burden. Who suffers the most when a free clinic closes? The
uninsured - those who need our services most.
Today's liability crisis is helping to
make a shameful situation worse.
Now is the time to ask: What's gone wrong with the
system?
Trial
lawyers will tell you it's the greedy liability insurers. Even though these
insurers pay more out in claims than they receive in payments. Even though A.M.
Best has determined that investment returns for liability insurers - mostly
from bonds - have been stable and positive for the past five years. The truth
is outrageous awards for non-economic damages are driving our insurance rates
over the moon. That's what the evidence shows.
Then there's the impact of the volume
of suits. On any given day, more than 125,000 cases against physicians clog our
nation's courts. Yet 70 percent of those filed are closed with no payment --
and physicians win 80 percent of the cases that do go to
trial.
If 70
percent of the appendices I removed were normal, I wouldn't be allowed to
operate! As an attorney, I have to ask: How about a little peer review for the
lawyers filing these claims?
America's patients should ask the same question,
because they are the ones bearing the real cost. According to the U.S.
Department of Health and Human Services, our broken medical liability system
adds $70- to $126- billion dollars to health care costs each year. Now imagine
a world in which these same resources were used to insure the uninsured. Or
improve access to medical care in underserved areas. Or spur innovation in
medical technologies, especially those that lead to safer medical
practices.
So what
do we do about this so-called jackpot justice mentality that is jeopardizing
our health care system? We must do what physicians always do -- apply the
scientific method to the problem, using it as a framework for analysis. Only
after making observations, gathering evidence, testing hypotheses, validating
findings can we prepare our argument. This approach - which has brought so many
advances to our profession - will also help us solve the liability crisis.
Because the scientific method is a powerful tool to debunk the unfounded and
ever-changing arguments offered by the opponents of liability
reform.
Here's
what this method has revealed thus far. Today, six states enjoy a stable
liability climate, including my home state, Louisiana. What do these states
have in common? Strong, sensible medical liability reforms - including caps on
damages for pain and suffering.
One of these stable states is California, which passed the
Medical Injury Compensation Reform Act or MICRA in 1975. Since MICRA was
enacted 27 years ago, liability premiums in California have risen 182 percent.
If that sounds like a lot, note that the average rate of increase for the
nation during that time period was about 570 percent. That's right, almost a
six-fold increase.
What do these differences mean to individual physicians in
practice?
An
obstetrician in Los Angeles, California - where reforms are in place - pays
about $69,000 a year for insurance. That same obstetrician in Miami, Florida -
a state without reforms - pays about $249,000 or more for liability insurance.
Caps on damages really do make a difference - to physicians and, most
importantly, to patients.
Today, MICRA saves California about $1 billion per year in
liability premiums. Best of all, patients can still find physicians to deliver
their babies, read their mammograms and perform emergency surgery. Why? Because
physicians can afford their liability insurance premiums.
In contrast to these proven reforms,
opponents of reform instead offer studies that cannot be validated by
independent, acknowledged experts. For example, they claim that litigation
makes medical care safer by punishing physicians when errors occur or
allegations abound. But there is no evidence of that. None! Instead the
evidence suggests that our shame and blame culture actually deters the
reporting - and hence the understanding and prevention - of errors. It thwarts
our efforts to prevent errors before they happen.
The AMA has supported legislation that
would enable the creation of a voluntary, confidential, error-reporting system
to help health care professionals stop errors from happening in the first
place. We also have supported the National Patient Safety Foundation, which
seeks to reduce errors through system change, to the tune of more than $6.5
million dollars.
The AMA will continue to fight aggressively for strong federal
patient safety legislation and strong federal liability reforms, based on
reforms that have worked in California and Louisiana. Earlier this year the
House of Representatives passed legislation known as the Health Act. This
legislation would allow patients injured by negligence to be compensated for
lost wages and for medical costs, without limit. It would give patients greater
shares of awards by limiting the amount attorneys receive. Finally, it would
cap the subjective non-economic awards - such as pain and suffering - at
$250,000 per incident. As noted earlier, a similar Senate bill was never voted
on because of political maneuvering.
Unfortunately for us, the trial bar remains a
powerful enemy of this legislation. They have briefcases full of junk math and
deceptive sound bites. They have piles of cash at their disposal. They know how
to use those funds to their best advantage.
But we can win this battle and end the liability
crisis. We must ignore the naysayers who claim we'll never get a liability bill
through the Senate. I remember when they said we would never achieve liability
reforms in Louisiana in 1975, but we did it.
I urge you to pick up the telephone and call
1-800-833-6354. This toll-free hotline will connect you to your Senators. Let
them know the medical liability debate will not be silenced with a
filibuster.
As for
the naysayers who say we are too weak and our opponents too strong, ask them
this: When will we be stronger? When more neurosurgeons and obstetricians leave
practice? When more Americans lose access to care - especially those who are
the most vulnerable? No - the time is now.
President Bush is on our side. Secretary Tommy
Thompson is on our side. The U.S. House of Representatives is on our side.
Senate Majority Leader, Dr. Bill Frist, is on our side. Most importantly, our
patients are on our side, because our side is their side.
We have an unprecedented opportunity
to put an end to jackpot justice and to save our noble profession of ethical,
science-based medicine from a broken medical liability
system.
We must
save it so that mothers don't have to drive 80 miles to have their babies
delivered. Save it so trauma victims can get care five minutes away, instead of
five hours away. Save it so the most vulnerable of our patients have access to
a physician - including those who live in areas that are already
underserved.
Most
of all, we need to save medicine so that future generations can get care, cures
and compassion from those of us who have dedicated our lives to this calling to
service.
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