Malpractice Suits

Doctors reach a crisis point

Urgency: Physicians are leaving the field because of what they see as a malpractice insurance nightmare. The most extreme example of the situation is with OB/GYNs.

January 11, 2004|By James M. Kramon | James M. Kramon,SPECIAL TO THE SUN

THIS MONTH - Jan. 21 - more than 1,500 Maryland physicians are set to close their offices, put on white coats and travel to Annapolis to impress state legislators with the urgency of medical liability tort reform.

Although the emphasis of the physicians' arguments will concern economic aspects of medical liability, the presentations are expected to address a broad range of concerns.

Dr. Sharon M. Pusin, president of the Baltimore County Medical Association, makes the urgency clear: "[Legislators] must be made aware that to do nothing is not a viable option."

The medical liability insurance crisis has reached a point where it is chasing physicians out of medicine.

The most extreme aspect of the situation concerns obstetricians/gynecologists. The practice of obstetrics, preparation for and delivery of newborn babies, is a malpractice nightmare. Not only does that practice pose the potential for profound damage to a person that may last his or her life, but the statute of limitations for instituting such a lawsuit against a physician (normally three years) does not even begin to run until a child reaches the age of majority, which is 18 in Maryland.

In other words, a physician who delivers a baby is potentially liable for a lawsuit - justified or unjustified - for 21 years from the time of delivery. Almost nowhere in the law, short of heinous criminal offenses for acts resulting in death, does a statute of limitations exist nearly this long.

The result of this situation is not surprising. Numerous OB/GYNs have, in recent years, left the practice of medicine well before normal retirement age. Others have expressly limited their practices to exclude obstetrics. It is commonplace for contracts between OB/GYNs and hospitals to exclude matters related to the delivery of babies. Parts of Maryland have been without physicians practicing obstetrics for substantial periods of time and the future looks worse: Only one graduate of the Class of 2003 at the two Baltimore medical schools chose OB/GYN as a specialty.

The legal profession bears a heavy part of the responsibility for what is occurring. Lawyers, encouraged by the Supreme Court's approval of attorney advertising, have, in recent years, had a field day with tort liability. Since physicians have insurance and deep enough pockets to be interesting targets, it is difficult for some lawyers to take their eyes off them.

The absurdity of a lawsuit against a fast-food restaurant by a customer who spills hot coffee on himself or against a phone booth manufacturer because a car jumped a curb and ran through a phone booth injuring its occupant is obvious. But the absurdity of many medical malpractice lawsuits is harder to see.

In five years as general counsel for a Baltimore area hospital that had 185 physicians admitting patients, I saw dozens of malpractice lawsuits. Probably more than half of them had no reasonable foundation, perhaps a third were arguable (although I would not have been comfortable instituting many of these), and a relatively small number were slam-dunk errors.

Some attorneys who institute large numbers of medical malpractice cases seem to follow the notion that if you throw a lot of mud against a wall, some of it will stick.

Unfortunately - and for this I place the blame squarely on the legal profession - there is little downside for an attorney who files an unjustified medical malpractice lawsuit. Although recovery of defendants' costs is a theoretical possibility (as distinguished from the English system where such costs are routinely recovered), courts in this country almost never award them. Other than the nominal requirement that a physician certify there is liability - easily obtained - there is no limitation to filing such lawsuits other than the good faith of attorneys.

The threat of malpractice suits does not affect only careless physicians. The specter of medical malpractice, particularly the knowledge that a physician who has done nothing negligently can be sued at any time, utterly warps the practice of medicine and erodes physician-patient relationships.

First, medical malpractice premiums, particularly in high-risk specialties, are enormous. In recent years, such premiums have approached and occasionally exceeded six-figure amounts. In addition, since such insurance is now all but exclusively sold on what is known as a "claims made" basis, there is an expensive insurance fee for what is known as a "tail" due at the conclusion of a physician's practice. The economics of medical malpractice insurance are untenable for many physicians, but they are not the worst result.

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