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The hidden cost of medical liability litigation

2004; Elsevier BV; Volume: 78; Issue: 1 Linguagem: Inglês

10.1016/j.athoracsur.2004.03.057

1552-6259

Donald J Palmisano,

Ethics in Clinical Research

T am greatly honored by your invitation to present The Thomas B. Ferguson Lecture. It is a special privilege to be able to deliver this address during Dr Guyton's Presidency of your Society. He is a wonderful representative of the Guyton family of physicians. It is no surprise that there is a lectureship in Dr Ferguson's honor. Review the history of all the major cardiothoracic societies and you will find his name as an Officer. He served for sixteen years as the Editor of The Annals of Thoracic Surgery and is Professor Emeritus of Cardiothoracic Surgery at Washington University School of Medicine. When I reviewed Dr Ferguson's additional multiple accomplishments, it became obvious to me that he has dedicated his life in an exceptional way as both a healer and inspirational teacher to the noble profession we call Medicine. Now that beloved calling, caring, and compassionate service to others is threatened by a toxic environment—a broken medical liability system. The liability system has become so oppressive that doctors are limiting their practices, retiring early, or moving to states with more stable liability climates. No wonder President Bush in his speech to physicians and other health professionals in Arkansas yesterday stated, “The health care system looks like a giant lottery. That is what it looks like these days with these lawsuits and somehow the trial lawyers are always hold the winning ticket.” A crisis rages in 19 states—home to 140 million people—half our nation's population—our patients. What is a crisis? It is all about access to care—a pregnant woman in labor and distress but with no obstetrician available, a 9-year-old boy with head trauma and no neurosurgeon left in town, the only trauma center left in a community closing. Fixing the broken medical liability system is the American Medical Association's (AMA) number one legislative priority, because it does not matter if you have health insurance or a prescription drug benefit if you cannot find a physician. I have been traveling across our great nation—speaking to physicians, politicians, attorneys, actuaries, and just ordinary citizens regarding the litigation lottery that fuels the skyrocketing costs of medical liability insurance. Our goal is to bring the facts to Congress, state legislators, citizens, and physicians—physicians who struggle daily to continue to render lifesaving care under adverse conditions. And, yes, to bring hope to the medical students and young physicians that we can fix this system if we work together and speak with the same message. We cannot let ethical science-based medicine disappear into an abyss. We as physicians have been given a priceless gift of the art and science of medicine and it is our responsibility to save it for future generations. We will go anywhere to advance our cause. Last year in my President-Elect term, I was on the road for 249 days. This year as President my travel will probably top 300 days. We can do no less. Much is at stake. Aldous Huxley said, “Facts do not cease to exist because they are ignored.” We are doing our homework—you can find it in our 29-page handout available on the AMA website (www.ama-assn.org)—and we will not allow our opponents to ignore the facts! Their junk math and empty out-of-context anecdotes will not fool any of us any of the time. Stock-market losses? We debunked that and more. Caps do not work? We debunked and illustrated that one has to compare apples with apples and not apples with oranges. The Missouri cap is different than the California cap. Missouri allows multiple caps with one incident. And we will not allow them to fool our patients—any of them. Science, the facts, the truth—are on our side. Whether I or other AMA leaders are giving AMA testimony in Congress or debating the leaders of the Association of Trial Lawyers (ATLA) and their cohorts on CNN, NBC, CBS, Hardball, Cross Fire, Nightline, and in a myriad of other locations, or speaking to the National Press Club and answering their questions on C-SPAN, our message is credible, consistent, and based on the evidence. Be sure to get and keep a copy of our AMA handout document I just mentioned. It is entitled “Medical Liability Reform Now!” (www.ama-assn.org/go/mlrnow) and it contains much of the data we have collected including the debunking of the myths offered as reality by trial lawyers. Yes, the facts of this crisis do not cease to exist because they are ignored. The crisis continues to spread just as an untreated abscess in the chest will get worse. Sham ineffective laws are akin to putting a beautiful shirt on the patient but failing to drain the abscess. The patient gets worse and sepsis ensues. The equivalent occurs with ignoring the reality of the broken medical liability system. We exhibited 12 states in crisis when we created the AMA Crisis Map a year and a half ago. Now on the AMA website we have 19 states in crisis—states where each day patients face the loss of access to medical care because our out-of-control legal system has inflated the cost of medical liability premiums. Another 25 states are “at risk.” We only have six stable states: my home state Louisiana, as well as Indiana, New Mexico, Colorado, Wisconsin, and California. In the crisis analysis the primary factor in classifying a state as a crisis state has been the magnitude of the number of patients losing access to medical care. We looked closely at the data indicating that physicians are retiring early, moving out of state, and stopping the performance of certain medical procedures such as delivering babies. We also looked at the state's judicial and legal climate, the affordability and availability of professional liability insurance, the trends in jury awards and settlements, as well as a number of other factors. But with all the data we collected—and there is plenty—the most telling evidence of crisis next to loss of access to care has been the stories that individual physicians have told me regarding the emotional injury they have endured because of the so-called “liability lottery” that is going on out there. I probably do not have to tell you about this because, as thoracic surgeons, the likelihood is that you have been sued yourselves. One study conducted in Dade, Broward, and Palm Beach counties in Florida determined that greater than 94% of cardiovascular or thoracic surgeons have been sued. Those surveyed exhibited an average of 2.12 past lawsuits each with an average of 1.5 lawsuits pending and an average total of 3.62 lawsuits each so far in their career. (The study was called “Physician Professional Liability Survey” and was performed in November 2002 by RCH Healthcare Advisors, LLC for Floridians for Quality Affordable Healthcare.) Of course it could be worse and, for neurosurgeons, it is! Every neurosurgeon in South Florida has been sued, five times on average! In another smaller study performed at just one hospital in Florida, 100% of the cardiothoracic surgeons had been sued, 100% of the general surgeons on staff had been sued, and 96% of the gynecologists on staff had been sued (Palm Beach Daily News, July 13, 2003). Now you and I both know that every cardiovascular and thoracic surgeon in Florida is not a negligent or “bad” doctor. But all of us—physicians and our patients too—suffer from the litigious society we live and practice in—a society where expectations are high and understanding of what can be accomplished by mere mortals such as ourselves is very low. But President Bush understands this and is willing to support our efforts. As he said in his State of the Union address last week, “To protect the doctor–patient relationship and keep good doctors doing good work, we must eliminate wasteful and frivolous medical lawsuits.” What I would like to talk with you about today is just how high a cost we physicians pay for this litigation-happy society—a high cost in factors other than financial ones and what we can possibly do to change this situation. For most physicians getting slapped with a medical liability suit can be a major traumatic ordeal. And the statistics indicate that this happens frequently. On any given day more than 125,000 cases against physicians clog our nation's courts. Yet 70% of those suits filed are closed with no payment and physicians win 80% of the cases that do go to trial. Let's have some peer review for attorneys! Although these numbers demonstrate that physicians rarely lose medical liability cases, the upheavals they cause exhibit unsettling effects. In a study conducted in 1988, psychiatrist Dr Sara Charles, Professor of Psychiatry at the University of Illinois Medical School, determined that more than 95% of physicians react to being sued by experiencing periods of emotional distress during all or portions of the lengthy process of litigation. She goes further to list the many psychological effects physicians describe. When first being served, physicians experience a sense of outrage, shock, or dread regarding the personal and financial effects of the eventual outcome. Throughout the litigation period, they may experience intense anger, frustration, inner tension, and insomnia. Psychiatric disturbances often occur, too: major depressive disorders (prevalence: 27%–39%), adjustment disorders (20%–53%), and the onset or exacerbation of a physical illness (2%–15%). As any of you who have undergone this terror well know, this is no exaggeration. Phillip K. Howard, founder and spokesperson for Common Good—a bipartisan coalition dedicated to overhauling America's lawsuit culture—recently captured how physicians are reacting to a commentary in the Wall Street Journal. He wrote, “Pervasive distrust impairs the quality of care. Candid give-and-take among professionals, vital to good health care, is chilled by fears that anything said might be used later in court. Innovation is stifled because of fear of the legal consequences of anything new and uncertain. Perhaps worst, legal fear places barriers between caregiver and patient in situations when what is needed most is human empathy.” The side effects of this trauma often affect how one practices medicine. According to a recent Harris Poll, three-fourths of physicians believe that concern regarding malpractice litigation (76%) has hurt their ability to provide quality care in recent years. According to the same Harris Poll, fear of litigation causes physicians to practice “defensive medicine.” Seventy-nine percent of physicians report that they order more tests than they normally would based only on professional judgment of what is medically required. Yet malpractice claims seldom correlate with findings of negligent care in the medical record. According to a Harvard study medical liability awards do not correlate with negligence. The only correlation is with disability. The present system does not accurately measure negligence; it decreases access to care, decreases quality, and increases the cost of medical care. What a system! Also, noneconomic damages—driven by emotion—cannot be predicted or objectively quantified. The AMA is of course against “bad doctors,” just as the AMA is against physicians who supply plaintiff attorneys with unscientific testimony masquerading as the standard of care. Rights bear responsibilities and the right to sue should carry the responsibility not to harm others through frivolous suits, but there is no accountability for attorneys in the present system regarding meritless suits. Unfortunately the threat of liability exhibits the perverse result of driving errors underground. The Aviation Safety Reporting System has taught us that a culture of safety is created by avoiding a culture of blame. The same principle needs to be extended to the medical system. We need to look at systems. Transforming the existing culture of blame and punishment that suppresses information into a culture of safety that focuses on openness and information sharing will improve health care and prevent adverse outcomes. The emotional climate caused by medical liability appears to have gotten worse over the years. In a survey conducted during 2003 and published in 2004—the Survey of Physicians 50 to 65 years old by the consulting firm of Merritt, Hawkins, & Associates—determined that “Twenty-eight percent of physicians indicated that malpractice worries are the single source of their greatest professional frustration, followed by managed care (16%), Medicare/Medicaid regulations (13%), and the pressure of running a business (10%).” What troubles me is that in this firm's 2000 survey, malpractice was listed as the single greatest source of professional frustration by only 6% of physicians. The significant growth in the number over the past several years signals that the situation is intensifying. I do not need a survey to tell me that physicians are suffering. AMA leaders and I have traveled to the rallies and spoken to physicians in North Carolina, Texas, Nebraska, New York, New Jersey, Pennsylvania, Massachusetts, Ohio, Georgia, Illinois, West Virginia, Oklahoma, Maryland, and Washington State. More visits are coming up. One of those AMA leaders working to fix this crisis is in the audience today—AMA board chair, Dr. William Plested. Many of you know that he is a thoracic surgeon and a member of The Society of Thoracic Surgeons. It is a privilege for me to work with Bill. You know that our colleagues would not be taking to the streets in such large numbers, closing their offices, and rescheduling patients if the situation were not so unbearable. They make sure their patients have access to care in their absence as they exercise their constitutional right to petition government for needed changes. I read a story in the newspaper last year in which a thoracic surgeon, Raymond L. Singer, MD, of Allentown, Pennsylvania, was quoted at the annual meeting of the Pennsylvania Association for Thoracic Surgery. He said, “Normally our meeting is a relaxing time when heart and lung surgeons from around the state can meet and discuss challenging operations and new techniques. This year our meeting was more of a going-away party and a sad one at that. Eight of our top heart and lung surgeons in Pennsylvania have decided to leave the state or even leave medicine altogether.” His observation again proves that facts do not cease to exist because they are ignored! This medical liability system is broken and doctors and patients are being harmed by it. Thinking about saying goodbye makes me recall a dear colleague and friend who passed away a short time ago—F. Maxton Mauney, Jr—Max—a cardiothoracic surgeon from North Carolina who fought for patient access to quality care and who served on the AMA's Council on Medical Service. He was a dedicated physician activist and he will be missed. Where is our profession going to find more Max Mauneys? I worry about what kind of message this crisis is sending to our future physicians, the future of our profession. In one of your surveys in the last year, STS determined that “the number of heart surgeons entering training is likely to be insufficient to replace those who will retire.” And in my travels many students have shared their concerns with me. They want to get involved in changing our out-of-control liability system and learn to counter arguments from opponents of reform. I remind them that it is not enough for physicians, or those in training, to simply say to patients “trust me.” As medical professionals, students, clinicians, scientists, and educators we know we must find the facts, weigh the evidence, and offer clear, concise, fact-based responses and we must take the same approach with our adversaries who often seem unacquainted with the truth. I have gained energy from the physicians and medical students I have met who believe in ethical science-based Medicine and who carry on despite the obstacles that threaten to overwhelm them—students such as Ben Galper who joined us at our interim meeting last month. He is a medical student from Albert Einstein Medical Center in the Bronx who invited me in May to give a speech to the medical students there. Later in May I saw him energize an audience at a rally in New York City pleading with the crowd to work for reform to ensure that, as he put it, “medical students will not be the future targets of trial lawyers, but instead will be the future physicians and healers for the residents of the United States of America.” We need that kind of energy to win. And we will win. If we work together. As any good physician knows, a patient in crisis requires—first and foremost—to be stabilized. And that is what the AMA wants to do using federal reforms that copy proven state reforms. We are open to suggestions for studies on other alternatives but not at the diversion of attention from the required emergency proven treatment. Do the emergency stabilization and then consider a long-term complete overhaul of the medical liability system. Whatever evolves we must exhibit accountability for attorneys who file meritless suits. The time is now for a uniform national approach to resolving this crisis. Congress must pass reasonable reforms that stabilize the medical liability system. That is why we support the provisions of the HEALTH Act or HR5, which the House of Representatives passed in March but which has been bottled up in the Senate by a filibuster. The HEALTH Act is based on MICRA passed in California more than 25 years ago. This legislation would benefit patients by allowing injured patients unlimited economic damages including past and future medical expenses, loss of past and future earnings, and the cost of domestic services, establishing a sliding-scale for attorneys' contingency fees thus maximizing the percentage of awards given to patients, and allowing injured patients noneconomic awards of up to $250,000 for such pain and suffering. The HEALTH Act also provides flexibility. It allows states to individualize caps and respects state reforms that are already in place. And it has helped ensure that women do not have to drive for miles to deliver their babies and that accident victims do not have to be flown to the nearest trauma center, as is happening in a number of crisis states. Some patients do not make it in time when they have to leave their own community to get emergency care. Recently I spoke to the American College of Surgeons' Clinical Congress in Chicago and told the story of Leanne Dyess whose husband suffered irreversible brain damage after an auto accident in Mississippi because there was no longer a neurosurgeon at the hospital due to the medical liability crisis. Afterwards I was approached by a young surgeon who said he understood that story all too well. In a soft sad voice he told me he had just lost his son, 10 years old, to a head injury that was correctable. But again because of the liability crisis, there was no longer a neurosurgeon at the hospital. Real people. Real tragedies. Thus time is of the essence. We need to get a good bill out of the Senate. The version in the Senate is S.11 and it would allow plaintiffs to be compensated for lost wages and medical costs without limit. It gives patients a greater share of awards by limiting the amount attorneys receive and it caps the subjective noneconomic awards such as pain and suffering at $250,000 per incident. In July despite the best efforts of our colleague and thoracic surgeon, Senate Majority Leader Dr Bill Frist, 49 senators voted to end the filibuster on S.11. We need to pick up 11 more votes in the Senate to pass medical liability reform legislation. We need to look at the setback in the Senate in July not as a barrier but as an opportunity. What the Senate vote taught us is that there is no longer disagreement regarding whether there is a crisis—the disagreement is only on what constitutes the solution. Dr Frist and Senate leadership will press for one or two more votes on this bill this year. We are urging Dr Frist to set the date for the Senate floor vote well in advance so we have time to implement a more effective campaign. As for steps to improve patient safety the AMA founded the National Patient Safety Foundation in 1996 and we have donated over $6.5 million to it. We challenge the trial lawyers to match our donations but to date they have not given a dime. We also need to move along the legislative efforts to promote patient safety. To truly protect patients the AMA supports legislation recently passed by the House of Representatives—known as the Patient Safety and Quality Improvement Act or HR663—that would help create a voluntary confidential error reporting system that allows review by experts who report back to those involved on how to fix the system. The fix is then shared with all. That is how the Aviation Safety Reporting System works. Similar legislation (S.720) has been approved by the Senate Health, Education, Labor, and Pensions Committee unanimously. In both chambers the AMA has been immersed in bipartisan negotiations. If enacted this legislation could help us transform the existing culture of blame into a culture of safety. These battles will not be easy. The trial bar is a formidable well-financed foe. Yet we can win these battles in Congress provided we stand together and speak as one with one message. Our big win on Medicare indicates how effective we can be. As you know Congress made history in November and approved the Medicare Prescription Drug Bill. In a meeting at the White House in December, President Bush thanked me personally for AMA's work on Medicare reform. When I later met with Dr Frist one-on-one, he, too, thanked the AMA for all our hard work regarding the Medicare legislation. As I told the AMA House of Delegates at our Interim meeting, the Medicare Prescription Drug Bill was a victory for medicine, a victory earned because the family of Medicine spoke with one voice—or, if you prefer, multiple voices but with one message. A unified voice that ensured that all Medicare patients would be eligible for a prescription drug benefit and the neediest would receive the most help. Just as important it will protect access to care for seniors by stopping Medicare cuts to physicians and other health professionals for the next 2 years. Instead of cuts the Medicare bill provides at least a 1.5% increase in payments in 2004 and 2005. This represents a 6% swing in Medicare payments this year at a time when physician practice costs are climbing ever higher. The Medicare bill also provides regulatory relief so physicians can spend more time with patients and less time on paperwork and also obtain fairer treatment with due process and fair play. A unified voice that helped ensure Medicare patients get a greater choice of health plans and all Americans get greater access to health savings accounts and thus more control over their health care decisions. Many pundits thought that AMA policy would not pass for many years. More pundits and naysayers bite the dust! So that is why the AMA applauds Congress and the Administration for giving America's seniors and disabled greater access to prescription drugs and medical care as well as more choices under Medicare. This was indeed a big victory for physicians, a big victory for our patients, and a big victory for seniors. But we are not stopping now. As long as we are saddled with a flawed Medicare formula that keeps us careening from one payment crisis to the next, we will not rest. Temporary relief is no longer good enough—we need a permanent solution and very soon. For all our work, for all our unity of purpose and message, we could not have won this fight if the Medicare bill had not gone to the Senate floor for an up or down vote, which is why we are working so hard to win over the obstructionists in the Senate to get the medical liability reform bill—the HEALTH Act, Senate bill 11—onto the Senate floor. We will listen to any approach to bring liability reform closer to reality provided it is based on actuarial evidence and not political expediency and provided it does not undermine effective state reforms already in place. And it must also be consistent with the democratically determined AMA policy voted on by all of the states and more than 100 specialty societies sitting in the House of Delegates. We also need to build our AMA Fund for America's Liability Reform. The current balance is close to $1.6 million, but remember, we are up against foes with deep pockets. Visit the AMA website to learn more. We realize that all politics and fund-raising are local. Thus parallel efforts are great as long as we remain united and deliver the same message. We are building our clout—our Patients' Action Network exceeded its 2003 goal. We have signed up more than 77,000 activists who have sent more than 200,000 e-mail messages to Congress. And we have distributed nearly 20,000 Physician Action Kits. Go to the AMA website (www.ama-assn.org) to learn more regarding this. Patient involvement will be the key to success. Some say success at the federal level is likely to require a multiyear campaign so the 2004 elections are important as an additional platform to press for medical liability reform. But if a major accident occurs and the necessary specialists are no longer in that city, the public will demand immediate action. So we must be ready with a united approach to fix the broken medical liability system. Our big win on Medicare illustrates what happens when we speak with a coordinated effort delivering the same message. And just this year physicians here in Texas have revealed to us that success follows when everyone works together. Texas is a crisis state where half of the counties do not have an obstetrician. Texas decided to do something regarding the crisis and took a quantum leap with regard to liability reform. The Texas Medical Association (TMA) spearheaded liability reform in the legislature and won. But they did not stop there. Well aware of the Texas Supreme Court declaring previous caps on damages unconstitutional per the court's interpretation of the state constitution, TMA advanced Proposition 12, a constitutional amendment that sanctions medical liability caps. I was privileged to represent AMA at the invitation of TMA to meet with patients and physicians in September and address media to help spread the news. The AMA also contributed $100,000 to support the drive for the amendment to help push them over the goal line. So it was a joy to be awakened at 4 am on September 13th in Helsinki, Finland, where I was attending the World Medical Association General Assembly, to receive the news from a Texas physician that voters—informed and educated by organized Medicine—took matters into their own hands and passed Proposition 12 in Texas! It was the first time a state constitution has been changed to specifically authorize caps on noneconomic damages and its passage will save years of legal wrangling. I still proudly wear my “Yes on 12” pin when I debate liability reform with the trial attorneys. And nationally, the rallying cry “Remember Proposition 12!” can spur us on as we continue our battle for state and national medical liability reform. So now Texas law limits noneconomic damages, which account for greater than 65% of jury verdicts in health care liability cases. But it leaves in place the ability to recover fully for economic damages. It will help keep medical care affordable and accessible for all Texans by giving doctors, hospitals, and nursing homes much-needed insurance rate relief. And it will help reverse a trend of decreasing health care services in Texas. Proposition 12 has exhibited an immediate impact. Texas' largest insurer of physicians, Texas Medical Liability Trust, has announced a 12% decrease in 2004 premiums. That's right—premiums going down, not up! This reminds us that reform nationwide is not a pipe dream, but something attainable, something almost within our grasp. An overwhelming force speaking with one message. It does not matter what your philosophical or political leaning might be—Liberal, Conservative, Moderate, Democratic, Republican, Independent—this issue should transcend partisan bickering and special-interest lobbying both outside the House of Medicine and within. Differing messages are fodder for inaction. They give lawmakers an excuse not to pass meaningful reform. I will never forget a comment by a state legislator at a hearing in Louisiana in 1975, where doctors offered different messages: He said, “You doctors do not know what you want. Get your act together and come back next year.” Louisiana doctors understood that message and we got our act together immediately. What emerged was landmark medical liability legislation—capping damages. And we did it that same year! This kind of unified commitment will solidify our effort to reform our broken medical liability system to a successful one. Think about what the German theologian, Martin Niemoller, said just after World War II, “In Germany they came first for the Communists and I did not speak up because I was not a Communist. Then they came for the Jews and I did not speak up because I was not a Jew. Then they came for the trade unionists and I did not speak up because I was not a trade unionist. Then they came for the Catholics and I did not speak up because I was a Protestant. Then they came for me and by that time no one was left to speak up.” We must be here for one another. Each of us is but a phone call away. Let us not worry about who gets the credit if there is a win but instead work together so that there is a win in our quest for medical liability reform. We can win it if we work together. Thank you and God bless you.