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(Circulation. 2004;109:2939-2941.)
© 2004 American Heart Association, Inc.

Mini-Review: Expert Opinions

Health Care on Trial

America’s Medical Malpractice Crisis

Dean J. Kereiakes, MD; James T. Willerson, MD

From The Lindner Center for Research and Education/Ohio Heart Health Center (D.J.K.), Cincinnati, Ohio, and St Luke’s Episcopal Hospital/Texas Heart Institute (J.T.W.), Houston, Tex.

Correspondence to Dean J. Kereiakes, MD, The Lindner Center for Research & Education, 2123 Auburn Ave, Suite 424, Cincinnati, OH 45219 (e-mail lindner{at}fuse.net), or James T. Willerson, MD, St Luke’s Episcopal Hospital/Texas Heart Institute, 6720 Bertner Ave, Room B524 (MCI-267), Houston, TX 77030-2697 (e-mail suzy.lanier{at}uth.tmc.edu).

	Introduction

Top Introduction The Problem Conclusion References

 
The specter of medical malpractice in the United States has assumed crisis proportions. The American Medical Association has declared that malpractice issues are at least "serious and deteriorating" in 44 states.¹ Public awareness has been heightened by sporadic reports of physician work stoppages or closures (at least temporary) of hospital high-risk services (eg, emergency rooms, obstetrics).² In addition, physician outmigration has occurred from the most egregiously affected regions. A crossroads in American medicine has been reached that both threatens public access to quality care and further endangers an already limited supply of subspecialty physician providers.^3,4 Conversely, public disclosure of medical error and negligence^5,6 has prompted reasonable demands for responsibility among healthcare providers and compensation to the injured parties. The multiple and diverse factors that have contributed to the current crisis, its medical and public ramifications, and potential remedies are detailed in the present issue of Circulation by Donald J. Palmisano, MD, JD, President of the American Medical Association, Robert Cline, MD, a cardiothoracic surgeon, and Carl J. Pepine, MD, Immediate Past President of the American College of Cardiology.^7,8

At the heart of the malpractice crisis appears to be a tort system without adequate controls.⁹ This system has aptly demonstrated its ability to obtain large settlements in the class action case of silicone breast implants without strong scientific evidence for their harm.⁹ The expert opinions from noted thought leaders expressed in Circulation are remarkably passionate and consistent in their professional pride as well as commitment to compassionate, quality patient care. Our experts express hope that we are on the verge of a meaningful change in the current tort system, as well as fear of the consequences if change does not occur.

On the other hand, we also must be mindful of the fact that dedicated and well-intentioned trial lawyers are needed and that fair settlements are appropriate for patients who truly have been injured by incorrect or poorly directed actions of physicians or by potentially harmful products, the risks of which may not be represented properly by the manufacturer.

	The Problem

Top Introduction The Problem Conclusion References

 
Fear of litigation pervades all aspects of medical practice. Concern about liability erodes professional integrity and promotes the practice of "defensive medicine." Before 1960, only one of every 7 physicians was sued during their careers. Current estimates indicate that 1 of 7 physicians is sued every year.¹⁰ Concerns about liability modify physician behavior, leading, for example, to more frequent ordering of tests and procedures. Half or more than half of all physicians make clinical decisions that are influenced by either an "extreme" or a "strong" desire to minimize the possibility of lawsuit.¹¹ The experience of being sued prompts long-term defensive behavior. The lasting emotional angst was characterized by one physician: "I had to continue seeing patients, but my thoughts were troubling. Who will sue next? Am I missing something that will come back to haunt me? And...could I somehow be as incompetent as the plaintiff’s attorneys imply?...I was worried about the stigma of accusation."¹² This vicious cycle of fear distorts physician behavior in ways that further increase the likelihood of subsequent legal action.^13,14 Physicians who have been sued are less likely to disclose error and are more likely to be secretive or covert. Concerns about malpractice pervade residency training programs and may be a significant deterrent for individuals who might otherwise choose a career in medicine. A recent survey of subspecialty (non–primary care) residents in their final year of training demonstrated that 1 in 4 would select another vocation outside of medicine.¹⁵ The primary concern expressed by these residents (62%) was related to malpractice, with lesser concern for dealing with managed care and payers. Remarkably, despite the apparent onslaught of litigation, most patients who have been injured by medical negligence do not file legal suit.¹⁶ Multiple factors influence the patient’s decision to sue, particularly the ability of the involved physician to communicate with the patient as well as to demonstrate compassion and concern.^17,18 Patients may at times file suit to obtain more information that has not been forthcoming from the physician, who in turn may not disclose information for fear of being sued.^19,20 It should be no surprise that physicians would migrate away from the noxious stimulus of highly litigious regions. Multiple frightening anecdotal examples of physician outmigration with consequent limitation of public access to crucial healthcare services are recounted by Dr Palmisano.⁷ This trend is most evident among high-risk specialties and new physician graduates. The pressure of litigation also prompts physician dissatisfaction with medical practice and the decision for early retirement.² The oppressive and, at times, insurmountable costs of malpractice insurance coverage, as well as the regional disparity in costs, are succinctly detailed by Drs Cline and Pepine.⁸ In the context of managed care reduction in fee for service reimbursement as well as multifactorial increments in the costs of supporting practice (information systems, employee health care, and benefits), what is left for the surgeon who pays >$200 000 per year for malpractice insurance coverage? Again, it is no surprise that some states (most notably Florida) no longer require physicians to carry liability insurance to maintain their licensure. Of necessity, many physicians have chosen to "go bare," and physician asset protection has become a cottage industry in these states. Remarkably, this adversity may be bringing hospitals and physician groups closer together. For example, many hospitals have attempted to aggregate quality physician groups into "captive" self-insurance products, domiciled primarily in the Cayman Islands. Such relationships are designed to freeze or even lower malpractice premium costs while limiting catastrophic liability through the secondary insurance market. Although the attractiveness of these relationships with regard to cost/overhead relief for physician groups is obvious, the potential for restrictions to be placed on their practice (geographic and quantitative) or for exit penalties to be imposed is an additional cause for concern. At what point the hospitals’ helping hand becomes a controlling hand for previously independent physician groups can, we hope, be prospectively discerned.

The Cause
Who or what is to blame for this progressively dysfunctional system that currently threatens access to quality health care in many US states? Three potential candidates for blame have emerged: insurance carriers, healthcare providers, and trial attorneys. Each offers cogent testimony in its own defense. First, insurance carriers blame the astronomical increases in malpractice insurance premiums on massive awards to successful plaintiffs in addition to significant increments in median settlement amounts and/or the cost of defense. Drs Cline and Pepine document the increasing frequency and severity of malpractice claims and offer their state of Florida as a convincing case study. Both physicians and hospitals blame trial attorneys but also are critical of an American public that has unrealistic expectations of perfection in care and either will not or cannot differentiate between "maloccurrence" (known as adverse outcome) and malpractice (negligence). Furthermore, some juries are surprisingly poorly informed and poorly educated about many aspects of medical practice and the cumulative impact of multimillion-dollar awards on the cost of public health care. Conversely, trial attorneys are critical of both insurers and healthcare providers. They allege that insurance premiums have escalated because of irresponsible underpricing of liability insurance products by the industry during the early 1990s. Subsequent changes in insurance market competition, inflation, interest rates, stock market returns, and costs of reinsurance (in part escalated by the 9/11 tragedy) that have occurred over the past decade have "forced" the price of premiums upward. Proponents of this "insurance cycle" hypothesis point to the historically cyclic nature of the industry and argue that the problems will be self-correcting. Trial lawyers also have questioned the existence of a crisis situation that threatens public access to care when, although hospitals and physician practices are severely strained, they remain open for business. Furthermore, they point out that there are currently no studies by nonstakeholder organizations that have documented outmigration, early retirement of physicians, or closure of essential hospital services. Of note, those states that have reported few or no problems with regard to the availability of physician and/or hospital resources (most notably California and Indiana) and that are among the lowest for malpractice insurance premiums have already imposed limits or caps on noneconomic injury awards.

The Cure

"For extreme illness, extreme treatments are most fitting."

— —Hippocrates, Aphorisms 1.6

Drs Palmisano, Cline, and Pepine are not content to wait for the insurance cycle to correct itself. The patient (ie, US health care) lies critically ill and in need of more immediate measures. They cite precedent legislative measures such as the Medical Injury Compensation Reform Act (MICRA) passed by California in 1975. They believe that similar legislative provisions (the most important of which is a cap on noneconomic damages at $250 000) would be effective in resolving the liability crisis in Florida.

Even more significantly, federal legislation that would supersede state law is in process and includes many of the line-item reforms included in MICRA. Key components of the federal Help Efficient, Accessible, Low-Cost, Timely Health Care (HEALTH) Act (H.R. 5) are as follows²¹: First, caps on both awards and attorneys’ fees are proposed. Punitive (noneconomic) damages (ie, for pain and suffering) will be capped at $250 000. Caps placed on attorneys’ fees will be graded and will decrease gradually from 40% of the first $50 000 of the award to 15% of the award in excess of $600 000. Second, the statute of limitations will be modified. The proposed statute of limitations requires that a suit begin within 3 years of the alleged injury or 1 year after the claimant discovers the injury (whichever occurs first). A third central element of H.R. 5 is the elimination of joint and several liability. Currently, each defendant found negligent is individually liable for the full amount of the injury. H.R. 5 limits the liability of each defendant to that share or portion of the damages attributable to his or her individual responsibility. Finally, H.R. 5 proposes to change the way that collateral source benefits are treated. Collateral source benefits are extraneous sources of compensation to which the claimant may have access in the event of injury (ie, health and disability insurance, workers’ compensation, life insurance, etc). Collateral source benefits will be considered during formulation of proposed rewards.

"HEALTH" Relief
The Congressional Budget Office has made several projections on the economic impact of H.R. 5. First, the caps placed on awards and attorneys’ fees (proximate causes of increased insurance premiums) will lower the cost of malpractice insurance coverage for physicians and other healthcare providers by an estimated 25% to 30%. In logical sequence, a reduction in charges for healthcare services and in health insurance premiums is projected to occur. Second, if employers spend less on insurance for employees, most of the employee’s compensation will be in the form of taxable wages and benefits. Thus, H.R. 5 is projected to increase federal revenues by $15 million in 2004 and approximately $3 billion over the years 2004 to 2013. Concurrently, the Congressional Budget Office predicts that H.R. 5 could reduce federal direct spending by approximately $14.9 billion over the same timeframe.²¹

	Conclusion

Top Introduction The Problem Conclusion References

 
If tort reform is good in terms of public access to care and provision of higher-risk services, and if it is good for doctors, hospitals, and the US government, what are we waiting for? The US business community has long argued for similar caps on product liability. One small obstacle/consideration remains: The majority of federal Congressional and Senate legislators and state and federal Supreme Court justices are lawyers. Will they allow injury awards and attorneys’ fees to be capped? Indeed, with our current contingency system (approximately 30% or more of the award goes to attorneys), who is really driving the demand for massive awards? If the interest of trial attorneys is truly on behalf of the injured party, why aren’t they satisfied by an hourly rate so that the award for injury actually goes to the individual(s) who deserve it? We applaud Drs Palmisano, Cline, and Pepine for the passionate fervor so evident in their writing and for their efforts to provide healthcare providers and the US public with a succinctly outlined potential remedy for this dilemma. No doubt, both the emotional sentiment and political influence of the US public will be required to effect meaningful tort reform. The current medical malpractice crisis has aligned incentives of both patients and healthcare providers toward achieving accessibility and affordability of quality-controlled health care.

	Footnotes

 
The opinions expressed in this article are not necessarily those of the editors or of the American Heart Association.

	References

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