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Doctors Take on High Malpractice Insurance Costs

Monday, June 30, 2003 at 12:39 PM

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The next time you need specialized medical treatment you may not be able to find it. Doctors in Northeast Ohio are demanding help to combat the high cost of doing business. Recently passed tort reform legislation, which went into effect this spring, has not led to lower malpractice insurance premiums. So, doctors are taking their case to the streets. ideastream's Mike West has this report on the growing medical crisis in Ohio.

Despite the passage of tort reform, which caps the amount of pain and suffering awarded to victims of malpractice, doctors, like James Tasse, still blame lawyers for keeping their insurance rates high.

James Tasse: The way it is right now the current system, we have a jackpot justice system, we have a lottery system. Very few people get compensated very large amounts of money and it’s bankrupting the system. And it also doesn’t have anything to do with medical justice.

But malpractice lawyer Martin Sandel says it’s the insurance companies, not attorneys, who are responsible for the high cost of premiums. Sandel says insurance companies are keeping premiums high to make up for stock market losses, and says doctors were tricked into helping pass tort reform.

Martin Sandel: The doctors, I think, were expecting when tort reform passed they were going to get immediate relief for their high insurance premiums and that’s not happened. Basically I think they were sold a bill of goods by the insurance company.

The insurance industry got what it wanted with the passage of tort reform. It sets a $250,000 limit on most pain and suffering awards. But now insurance industry leaders insist they never promised anything in exchange. Frank O’Neil is senior vice president of corporate communications for Pro-Insurance. It’s one of only four companies that offers malpractice insurance in Ohio.

Frank O’Neil: I think it’s important to emphasize that I don’t believe anyone in the insurance industry was saying that tort reform would immediately affect rates. I think that was a lot of times the plaintiff lawyers say “see we told ya,” hoping to create some type of dissatisfaction with tort reform where the real key is giving it time to work.

Even in the handful of states that passed tort reform as far back as the seventies, premiums have continued to rise, although more gradually. Some blame the problem on a small percentage of doctors who make most of the mistakes. According to the government’s National Practitioner Database, 5% of all doctors are responsible for a third of all malpractice payouts. Doctor Donald Palmisano says that’s not the whole story. He’s the president of the American Medical Association.

Donald Palmisano: When you look and do the homework on all of that you find that your talking about high risk specialties, neurosurgery, obstetrics, people who have to work in the emergency department. What are we going to do eliminate those doctors?

Palmisano says high-risk physicians are simply more exposed to claims because of the nature of their work. It’s like comparing apples and oranges, or in this case a family doctor to a brain surgeon. Doctors also have a good track record in court. Palmisano says 70% of malpractice cases are closed without payment and of those that make it to court doctors win 80% of all cases brought against them.

Donald Palmisano: You go to south Florida, every neurosurgeon has been sued and the average number of suits per neurosurgeon is five, so it doesn’t correlate negligence and worse, the awards don’t correlate with negligence.

So where are the doctors and consumers now? Exactly where they were before tort reform. So what is a physician to do? Northeast Ohio doctors recently held a conference and a rally in Cleveland to look for answers. One of them is to minimize mistakes. Doctors are being reminded to do simple things, like writing legibly, asking nurses to read back instructions, and clearly marking surgical sites. Stuart Younger is chair of the Department of Bio-ethics at Case Western Reserve University School of Medicine. He says the industry needs to deal with the fact that doctors are not perfect.

Stuart Younger: I never had a teacher say when you make a mistake here’s how you deal with it, never nobody ever talked about it, they didn’t talk about it lectures and they didn’t talk about in the wards when I was a resident, it just was never talked about.

Doctor Younger says physicians are afraid to admit errors for fear of being sued. But he thinks doctors need to able to report foul ups or even near-misses without the fear of being punished.

Stuart Younger: One of the big problems with mistakes is the culture of medicine. Because if you hide mistakes or don’t talk about mistakes you don’t have a chance of improving and understanding them. So one of the big points that the institute of medicine makes is we have to change the culture of medicine.

Malpractice lawyer Martin Sandel also has some advice. He says doctors are less likely to wind up in court if they have a good bedside manner.

Martin Sandel: As a general rule, the major deterrent to the malpractice I have found is doctor-patient rapport. That is, the doctor needs to take time with the patient, needs to sit down with the patient, needs to make the patient not feel rushed. Needs to answer the patents questions and to project to the patient that the doctor cares that it’s just not how much money I can make off of this patient or this procedure.

There is no relief is sight for doctors. It will take years before tort reform has much effect on rates, if any, in Ohio and the State Supreme Court could still rule tort reform unconstitutional, something that has happened twice in the past. And in Washington, lawmakers are working on a tort reform bill, but the Senate and House cannot agree on many major issues. Meanwhile, the National Academy of Sciences reports that at least 44,000 American people die each year because of medical mistakes - that’s more deaths than from highway accidents, breast cancer or AIDS. In Cleveland, Mike West, 90.3.

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