No simple cure for malpractice woes

July 15, 2004|By Dinah Miller

THE REASONS for the rapidly escalating rates for physician malpractice policies are complex, even perplexing. The answer as to who pays for these increases, however, is simple: You do.

So, malpractice rates are increasing dramatically. Is this is a crisis? A recent Sun article says it's a crisis only if doctors flee to states where insurance is affordable and access to care is compromised.

The problem is presented in simple terms. The doctors want lower insurance premiums and favor tort reform that limits the amounts claimants can receive for "pain and suffering." This eliminates "jackpot awards," which seem to be more like lottery winnings than justice.

In their corner, we hear from the surgical subspecialists (especially the obstetricians) who are closing their practices because of exorbitant premiums. The other side, representing the wronged patients, brings out the most egregiously injured of victims who every compassionate person agrees should be well compensated. Trumpeting the cause of the patients' right to sue are the malpractice lawyers who, though uninjured, receive roughly 40 percent of any payout.

It's not just about the poster children; many factors are contributing to escalating malpractice costs. Are there more lawsuits where claimants are awarded higher sums by juries? Are patients who've suffered bad outcomes filing suit, even if there was no medical error? Are more lawyers representing such clients in the hopes of being compensated with "nuisance" payouts?

Maybe it's not just an issue of increased awards but of increasing medical malpractice. Are a few bad doctors at the root of the problem? Are the physicians who are burdened by rising malpractice costs and lowered reimbursements taking on more patients than they can handle? Perhaps these busy doctors make more mistakes, or are more likely to appear rushed and uncaring.

Patients who like their doctors are less likely to sue, and other emotional factors come into play.

And what about the insurance companies? Have lower interest rates and earlier stock market declines broken their banks? Why aren't there more malpractice insurers creating market competition for malpractice policies?

So what are the answers?

Maryland Senate President Thomas V. Mike Miller, with the support of the trial lawyers, has sponsored a bill proposing "rate compression." This measure lowers the premiums of physicians in the high-risk specialties while raising the premiums of physicians in low-risk (and lower-income) specialties. It doesn't address the escalating costs, but simply spreads out which doctors finance an out-of-control problem. It amounts to a random doctor tax on those specialists who are not as likely to be sued.

The Sun outlined this proposal in February and included a chart listing the salaries, malpractice premiums and proposed increased premiums of the different medical specialties. I found it intriguing that the article didn't include the income of malpractice attorneys. Perhaps rate compression in which the cost is shared by the trial lawyers would make more sense; at least they profit from maintaining the current system.

Other proposed solutions include lowering the maximum "pain and suffering" award, limiting lawyers' fees, changing the way economic damages are calculated (these were all proposed in tort reform legislation that was defeated this year), better scrutiny of medical errors, requiring mediation before trial and freezing malpractice premiums by creating a state fund that shifts the cost directly to the taxpayer.

Gov. Robert L. Ehrlich Jr. has appointed a task force to study the issues, and the political temperature rises: Mr. Miller pronounced the panel "biased" because the trial lawyers are not represented.

I don't know the answer, and I've purposely avoided displaying any data; each side has figures to support its cause.

What I do know is that if malpractice premiums rise, it will cost you money. It's not simply an issue of whether your doctor will leave or whether there will be obstetricians to deliver babies. If malpractice insurance premiums go up, your doctor will charge more. And if your medical insurance won't reimburse him, your doctor (the remaining one who hasn't left town) will leave your network.

When enough doctors drop out of your network, reimbursements will rise, as will the cost of health insurance. Not your problem? Perhaps you're uninsured and never plan to need the services of any physician. Or perhaps you qualify for Medicaid and the government picks up the cost of your medical care.

So long as your landlord and grocer have medical needs, rest assured, you will feel this pinch.

Dinah Miller is a psychiatrist in Baltimore City.

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