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| By Marie Cheine, Medical Writer I am a mother, a wife, and a daughter. I have watched family members become ill and be cared for respectfully and properly by members of the medical field. I am privileged to see first-hand new research that advances medicine and gives people who otherwise would not have a chance new hope for the future. I am also Chief Administrative and Financial Officer of a Cardiology Group in Tampa, Florida. I am responsible for accounting, banking, account payables, business contracting and the coordination of business for the practice. For these reasons I take particular interest in the current medical malpractice crisis which is one not only of availability but of affordability as well. Many states across the nation are seeing the departure of medical malpractice insurance carriers, which is leaving physicians searching for malpractice insurance coverage. Current trends, according to a June 5, 2003, article in the New England Journal of Medicine (NEJM) (http://www.nejm.org/), have left some physicians no choice but to turn to the joint underwriting association in their state as the “insurer of last resort.” In the state of Florida, some are turning to asset protection to minimize exposure to potential losses. Who of us hasn’t heard that subspecialty physicians are being forced to move out of state, take early retirement, or stop practicing high-risk procedures because of skyrocketing insurance premiums? Malpractice premiums are increasing at 20% to 50% annually (21%-41% in Florida in 2002), which has left much of the nation in an access-to-care crisis or near-crisis situation. According to the authors of “The New Medical Malpractice Crisis” in the NEJM, no studies have been reported by non stakeholder organizations regarding effects on access to care but that overall it appears that hospitals and physician practices are severely strained but still open for business. Chuck Moran, spokesman for the Pennsylvania Medical Society, explains that “When costs in one area go up and the revenue stream doesn't, doctors have to make cuts elsewhere. They defer purchasing new equipment, refrain from hiring additional staff, cut staff benefits, and in some cases give up or cut out part of the practice." The result of this strain on our company is a change in the way employees are compensated. We are unable to give annual raises to employees for doing more, working more hours, and providing better-quality services for our patients. We find that it is better to keep salaries in place rather than pass on the enormous burden of insurance to our employees or follow the national inclination toward salary reduction (see Time Magazine May 23 issue, “Where Did My Raise Go” by Daniel Kadlec) because of it. Physicians, insurance companies and trial lawyers have competing theories for the current medical malpractice crisis. Though each has contributing factors, some are more complex than others and there is no shortage of rhetoric in the public eye about these theories. On one hand, there are “consumer advocates” such as Ralph Nader who has recently been quoted on the topic of malpractice that “A favorite way to achieve this callous [controlling the crisis] goal is to put a $250,000 lifetime cap on pain and suffering. Apart from the fact that some insurance executives make that much in one week, every week, from your premium insurance dollars, consider how such a cap wrecks the innocent in California (http://www.commondreams.org/views03/0106-06.htm). His inflammatory, eye catching and news-making commentary would have one believe that “hundreds of thousands of Americans leave their doctors far worse than when they greeted them.” Of course, keeping the cap open-ended certainly would not make patients safer or enable physicians to practice with state-of-the art tools. It would, however, make good economic sense for lawyers and insurance companies to continue to increase premiums, enjoy high returns from legal cases and even higher profit from unethical cases that are settled out of court to keep expenses down for the physicians. In general, lawyers receive 40% of the awards allowed in court and many of the lawsuits stem from bad outcomes, but not bad medicine. The one thing we cannot avoid from the moment we are born is that we are going to die, even with the best that medicine has to offer. Perhaps this is why Guy Boulton, reporter for The Tampa Tribune, published an article on June 15, 2003 that reminds us that lawyers in Tampa earn more than $500,000.00 per year suing doctors, hospitals and nursing homes. He states that a local law firm, Trentalange & Kelley P.A. spends $84,000.00 per year to advertise the firm as a “zealous advocate for alleged victims of medical malpractice.” This alert to the public for awareness of deficiencies in patient safety afford a standard attorney fee of 40% of the total settlement or jury award, making suing doctors far more profitable than providing patient healthcare. In fact, Dona Rovito, legislative chair of the Pennsylvania Medical Society Alliance stated that "We need to lower the awards and get rid of frivolous lawsuits and roll-the-dice cases where every doctor who happened to be in the building the day the alleged injury occurred is named in the lawsuit. It costs $14,000 to defend them even when they are dropped from the case” (http://www.managedcaremag.com/archives/0212/0212.malpractice.html) In contrast to the inflammatory comments of Ralph Nader, on March 13, 2003, The American Medical Association applauded the House of Representatives for passing medical liability reform legislation, which includes the $250,000.00 cap on non-economic damages. According to Yank D. Coble, Jr., M.D., AMA President, “By voting ‘yes’ to medical liability reform legislation, Congress recognizes that our current medical liability system is broken and threatening access to care for millions of Americans, particularly in regard to high-risk medical care and services.” Finally, we hear a voice of reason in a cacophony of senseless babble. There has also been some good news regarding physician reimbursement. On February 28, 2003, The Centers for Medicare and Medicaid Services (CMS) published in the Federal Register [68 FR 9567] which became effective on March 1. 68 FR 9567 provided a 1.6% increase in Medicare reimbursement. In light of the fact that most major medical carriers pay 80% of Medicare allowable rates we must commend the government for not going ahead with the originally planned 4.4% decrease in reimbursement. In any case, most of us have become accustomed to taking the good with the bad. It is no surprise that after the glaring headlines of an increase in reimbursement of a whopping 1.6% for year 2003, President Bush quietly announced on March 15, 2003, that he planned major changes in the Medicare program that would make it more difficult to appeal denial of benefits. President Bush proposed legislation that would limit judge’s independence and have arbitration occur at the level of the Department of Health and Human Services. This may compromise the rights of beneficiaries. The cost of doing business is becoming more and more complex. Physicians are supposed to be reimbursed by the patient's insurer based on fee schedules that are published by each insurer. However, a recent article in the Miami Herald revealed that insurance companies use software called Claimcheck to analyze codes used for reporting office evaluations and procedures and denying part or whole claims. In many cases, the insurance software will pay either for the doctor’s time visiting and examining the patient, or the procedure performed on the patient, but not both. In fact, Cigna, a major US insurance carrier, has recently agreed to settle claims, but U.S. District Judge Federico Moreno in Miami federal court, put the Cigna settlement is on hold. Moreno accused the insurer of employing ''underhanded maneuvers'' by getting a quick settlement in another court to avoid continuing the case in Miami. Physicians must not be forced to practice medicine on the basis of possible litigation, but on the basis of what their education, training, and experience deems best for a patient. It follows that the physicians should also expect to be reimbursed for their services. It is becoming more and more apparent that there is a need for change in the way medicine and insurance is managed in this country. On July 2, 2003, James E. King Jr, President of the Florida Senate wrote a letter to Governor Jeb Bush. In this letter, he stated that the senate is trying to gather information and data collection that will be more fair and unbiased. He also stated that the Senate has “Some genuine concerns regarding caps. The overwhelming majority of members have little or no interest in a flat $250,000.00 cap. The Senate is concerned about a “one size fits all” fix for an extremely complicated set of circumstances that go from simple malpractice to egregious catastrophic outcomes. The Senate wants to be satisfied that the tiers and the ability to get more settlement when more settlement is judicially justified is a proper way to approach the crisis. On this same day, the American Medical Association published a press release urging senators to vote “YES” on medical liability reform. In essence: The U.S. Senate is planning to move the crucial issue of medical liability reform forward next week, voting on a Motion to Proceed regarding the Patients First Act of 2003. Passage of this motion would allow the Senate to bring up liability reform legislation for debate throughout the remainder of the 108th Congress. Introduced by Sen. John Ensign (R-Nev.) on June 27, the act’s reforms include: ensuring patients receive 100 percent compensation for their economic losses – including medical expenses, rehabilitation costs, lost wages and more – if harmed by a physician’s negligence; maximizing the amount of money juries award for patients, not trial lawyers; implementing expert-witness requirements; and enabling patients to receive up to $250,000 in additional, non-economic damages, while allowing states the flexibility to establish different caps. To emphasize the need to move forward, the AMA is urging physicians and patients to contact their senators and asking them to vote "yes" on the Motion to Proceed. You can reach them through the AMA Grassroots Hotline at (800) 833-6354 or through the AMA in Washington Web site. On Aug. 14 Governor Bush signed into law a compromise medical malpractice bill – after six months of negotiations and three special legislative sessions. The caps on jury awards for non economic damages will "have a calming effect" on rising malpractice premiums and physicians' leaving the state because of high premium rates. The state will cap non economic damages in malpractice lawsuits against individual physicians at $500,000 and at $1 million in lawsuits against multiple physicians. The cap in lawsuits against individual physicians could increase to $1 million in cases of severe malpractice. Provisions have been made for caps on hospital, ER and other healthcare providers as well. The legislation also froze malpractice insurance premium rates in the state from July 1, 2003, through Jan. 1, 2004, and requires insurers to reduce premiums thereafter based on state cost savings estimates under the new law. The new law also defines physicians' right to file "bad faith" lawsuits against their insurers in cases in which courts issue large damage awards against them in malpractice lawsuits and their insurers failed to offer settlements. It also allows physicians to form self-insurance funds, and details new medical error reporting requirements and physician discipline guidelines. Bush said that the "test" of the new law will be whether it brings more malpractice insurers to the state. Furthermore, because the legislation allows the state to collect more data, there will be "more clarity up front about whether or not a case is a malpractice case or a case of bad outcome," which should ultimately lead to lower premiums. However, he said he expected the bill would face legal opposition after its effective date of Sept. 15. (http://www.premierinc.com/frames/index.jsp?pagelocation=/all/newsroom/insurance/03-aug/florida-legislature-passes-medmal.htm) I continue to believe that physicians should continue to provide the most compassionate, ethical and advanced medical care to all the patients that they see. I believe that they should be paid for the services they render. I believe they should be able to practice good medicine without the worry of frivolous lawsuits or the costs that come with them. It does come down to the theory of supply and demand. I just hope that the supply is there when my family needs the demand. |
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