"No Doctors, No Malpractice"
AMERICAN ASSOCIATION OF PHYSICIANS & SURGEONS
1601 N. Tucson Blvd. Suite 9Tucson, AZ 85716-3450Phone: (800) 635-1196Hotline: (800) 419-4777
http://www.aapsonline.org
NO DOCTORS, NO MALPRACTICE
(AAPS NEWSLETTER: Volume 61, No. 2 February 2005)
The trial lawyers and their political servants say they have the answer to spiraling premiums for professional liability premiums: get rid of malpractice, by "disciplining" the doctors who "commit" it so that they can't practice.
Even President Bush, while campaigning for federal caps on awards, commissioned a study by the University of Iowa and the left-leaning Urban Institute to "help state boards of medical examiners in disciplining doctors" (NY Times 1/5/05).
"If you had more aggressive policing of incompetent physicians and more aggressive disciplining of doctors who engage in substandard practice, that could decrease the type of negligence that leads to malpractice suits," stated Josephine Gittler, a law professor at Iowa.
"If you take the worst performers out of practice, that will have an impact.... Most doctors have few or no claims filed against them," said Randall Bovbjerg of the Urban Institute. The same article notes that, according to the Federation of State Medical Boards, the 5,230 disciplinary actions against doctors in 2003 was up 7% from 2002 and 41% from 1993.
Meanwhile, New York hospitals have experienced an average increase of 27% per year in their liability premiums over each of the past 5 years, for a 150% increase since 1999. Since 2000, the number of insurers has decreased from six to four (NY Times 1/6/05). In 2004, some Pennsylvania surgeons were hit with a 300% increase, so that premiums equalled their take-home pay for an entire year (AP). In Maryland, about 70% of the obstetricians have been sued at least once, with the average settlement exceeding $1 million (Wash Times 12/12/04).
So, more disciplinary actions have been accompanied by higher liability costs not supportive of the plaintiff's bar theory. Has disciplinary activity been misdirected?
In New York, the percentage of actions for "poor quality care" dropped from 40% in 1999 to 28% in 2002 (AP) despite doubling physicians' licensing fees to fund more investigations.
In Texas, failure to furnish the board with requested information within 24 hours has led to harsher penalties than removing the wrong part of the lung (Star-Telegram 11/16/04). "It is extraordinarily difficult to discipline a doctor based on incompetence. Everybody knows that some doctors are in- competent, but identifying them is a very difficult task," said Timothy Jost, law professor at Washington and Lee Univ. and former member of the Ohio medical board (NY Times 1/5/05).
Massachusetts plans to have the tort system serve as a screen. Three or more payouts, either in settlements or judgments, will trigger a clinical review by the board (ibid.).
Maryland trial lawyers, while pretending to enact tort reform, forced through a bill that would foist part of tort costs onto taxpayers, while limiting further the due process rights of physicians facing board action. H.B. 2, passed in special session, changes the standard of proof for disciplinary action from "clear and convincing" to "a preponderance of the evidence." Governor Ehrlich vetoed the bill, as promised, but the legislature acted quickly to override the veto.
Tackling the "difficult task" of identifying "substandard" care are government agencies and insurers undeterred by inability to define terms such as "quality." While moving ahead with implementing a 2004 Minnesota law (M.S. 62J.43) requiring the state health department to begin standardizing the practice of medicine, Cabinet members were reluctant to give Twila Brase, President of Citizens' Council on Health Care, the definition she sought. Quality is "a little bit in the eye of the beholder," said Health Commissioner Diane Mandernach (CCHC Insider Report, winter 2004).
In the name of quality, UnitedHealth Group will monitor how well physicians follow guidelines for ordering imaging studies, claiming that "30 to 40% are ordered inappropriately" (Business J of the Greater Triad Area 12/27/04).
Horizon Blue Cross Blue Shield of New Jersey will be using claims data to compare doctors on clinical quality. It will send the first performance reports to 600 gastroenterologists and OB/Gyn specialists (Wall St J 12/15/04).
While such efforts may be styled as "pay for performance," with bonuses for compliance, "outliers" may find themselves targeted for licensure actions or alleged fraud or violations of antikickback laws, as insurance companies often have relationships with prosecutors (MSSNY 11/04) or boards. Malpractice suits frequently are filed against physicians who experience an audit, indictment, or board action.
Physicians are dropping out, one by one. In Illinois, 23 of 102 counties have no hospital, and an additional 26 have no hospital obstetric services (Wall St J 1/4/05). It's not just the money. After enduring the "intellectual rape" of a malpractice action, neurologist Michael S. Smith, M.D., decided to take an enormous pay cut and become a statistician (Sombrero 12/04).
Medical students had such an emotional reaction to the prospect of a doctor being sued that David Rothman stopped teaching Columbia students about it (NY Times 12/14/04). But bright prospective physicians have already figured out the high risk of investing in a medical education. "Kids are getting in today who would have been laughed out of the admissions office a few years ago," writes Herb Rubin, M.D., of UCLA. If medicine by protocol is really better than care by a skilled professional, who needs physicians? A technician following a "guideline" isn't really a physician.
Are trial lawyers really so short-sighted as to endanger their livelihood by destroying medicine as a relatively affluent profession? Or are they helping to guarantee far worse outcomes, with ever rising damages to be paid by insurers backed up by governmental taxing authority?
1601 N. Tucson Blvd. Suite 9Tucson, AZ 85716-3450Phone: (800) 635-1196Hotline: (800) 419-4777
http://www.aapsonline.org
NO DOCTORS, NO MALPRACTICE
(AAPS NEWSLETTER: Volume 61, No. 2 February 2005)
The trial lawyers and their political servants say they have the answer to spiraling premiums for professional liability premiums: get rid of malpractice, by "disciplining" the doctors who "commit" it so that they can't practice.
Even President Bush, while campaigning for federal caps on awards, commissioned a study by the University of Iowa and the left-leaning Urban Institute to "help state boards of medical examiners in disciplining doctors" (NY Times 1/5/05).
"If you had more aggressive policing of incompetent physicians and more aggressive disciplining of doctors who engage in substandard practice, that could decrease the type of negligence that leads to malpractice suits," stated Josephine Gittler, a law professor at Iowa.
"If you take the worst performers out of practice, that will have an impact.... Most doctors have few or no claims filed against them," said Randall Bovbjerg of the Urban Institute. The same article notes that, according to the Federation of State Medical Boards, the 5,230 disciplinary actions against doctors in 2003 was up 7% from 2002 and 41% from 1993.
Meanwhile, New York hospitals have experienced an average increase of 27% per year in their liability premiums over each of the past 5 years, for a 150% increase since 1999. Since 2000, the number of insurers has decreased from six to four (NY Times 1/6/05). In 2004, some Pennsylvania surgeons were hit with a 300% increase, so that premiums equalled their take-home pay for an entire year (AP). In Maryland, about 70% of the obstetricians have been sued at least once, with the average settlement exceeding $1 million (Wash Times 12/12/04).
So, more disciplinary actions have been accompanied by higher liability costs not supportive of the plaintiff's bar theory. Has disciplinary activity been misdirected?
In New York, the percentage of actions for "poor quality care" dropped from 40% in 1999 to 28% in 2002 (AP) despite doubling physicians' licensing fees to fund more investigations.
In Texas, failure to furnish the board with requested information within 24 hours has led to harsher penalties than removing the wrong part of the lung (Star-Telegram 11/16/04). "It is extraordinarily difficult to discipline a doctor based on incompetence. Everybody knows that some doctors are in- competent, but identifying them is a very difficult task," said Timothy Jost, law professor at Washington and Lee Univ. and former member of the Ohio medical board (NY Times 1/5/05).
Massachusetts plans to have the tort system serve as a screen. Three or more payouts, either in settlements or judgments, will trigger a clinical review by the board (ibid.).
Maryland trial lawyers, while pretending to enact tort reform, forced through a bill that would foist part of tort costs onto taxpayers, while limiting further the due process rights of physicians facing board action. H.B. 2, passed in special session, changes the standard of proof for disciplinary action from "clear and convincing" to "a preponderance of the evidence." Governor Ehrlich vetoed the bill, as promised, but the legislature acted quickly to override the veto.
Tackling the "difficult task" of identifying "substandard" care are government agencies and insurers undeterred by inability to define terms such as "quality." While moving ahead with implementing a 2004 Minnesota law (M.S. 62J.43) requiring the state health department to begin standardizing the practice of medicine, Cabinet members were reluctant to give Twila Brase, President of Citizens' Council on Health Care, the definition she sought. Quality is "a little bit in the eye of the beholder," said Health Commissioner Diane Mandernach (CCHC Insider Report, winter 2004).
In the name of quality, UnitedHealth Group will monitor how well physicians follow guidelines for ordering imaging studies, claiming that "30 to 40% are ordered inappropriately" (Business J of the Greater Triad Area 12/27/04).
Horizon Blue Cross Blue Shield of New Jersey will be using claims data to compare doctors on clinical quality. It will send the first performance reports to 600 gastroenterologists and OB/Gyn specialists (Wall St J 12/15/04).
While such efforts may be styled as "pay for performance," with bonuses for compliance, "outliers" may find themselves targeted for licensure actions or alleged fraud or violations of antikickback laws, as insurance companies often have relationships with prosecutors (MSSNY 11/04) or boards. Malpractice suits frequently are filed against physicians who experience an audit, indictment, or board action.
Physicians are dropping out, one by one. In Illinois, 23 of 102 counties have no hospital, and an additional 26 have no hospital obstetric services (Wall St J 1/4/05). It's not just the money. After enduring the "intellectual rape" of a malpractice action, neurologist Michael S. Smith, M.D., decided to take an enormous pay cut and become a statistician (Sombrero 12/04).
Medical students had such an emotional reaction to the prospect of a doctor being sued that David Rothman stopped teaching Columbia students about it (NY Times 12/14/04). But bright prospective physicians have already figured out the high risk of investing in a medical education. "Kids are getting in today who would have been laughed out of the admissions office a few years ago," writes Herb Rubin, M.D., of UCLA. If medicine by protocol is really better than care by a skilled professional, who needs physicians? A technician following a "guideline" isn't really a physician.
Are trial lawyers really so short-sighted as to endanger their livelihood by destroying medicine as a relatively affluent profession? Or are they helping to guarantee far worse outcomes, with ever rising damages to be paid by insurers backed up by governmental taxing authority?
posted by Bob Coli, MD at 10:02 AM
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