In the liability lottery, it's our patients who really lose

AMA Leader Commentary. By J. Edward Hill, MD. Sept. 2, 2002.

AMA LEADER COMMENTARY

A few words about current events in medical practice

SEE ARCHIVES

A message to all physicians from J. Edward Hill, MD, chair of the AMA Board of Trustees.

In my home state of Mississippi, legalized gambling was introduced in 1992. The state now has 30 casinos, mostly along the Mississippi River and on our Gulf Coast.

But there's another type of casino found throughout Mississippi. You won't find blackjack or slot machines there -- these casinos are in fact courtrooms that pay out in jackpot justice. The big winners are trial lawyers. The big losers are our patients.

We do not take issue with compensation for lost wages, or out-of-pocket expenses -- or reasonable awards for pain and suffering. If there's been a wrong, we want it made right. But we take issue with a justice system that's turning -- without rhyme or reason -- into a lottery.

In Mississippi, there have been $27 million in total awards just since January, including a recent one for $7 million -- that's $2 million over the physician's policy limit. It's no surprise that where once 14 liability carriers served physicians in Mississippi, now there's only one.

Our doctors are voting with their feet. Because of steep insurance costs, there are only two neurosurgeons in the northern part of the state.

The North Mississippi Medical Center in Tupelo, which serves 22 counties with 600,000 people, now finds it almost impossible to recruit doctors.

And a group of 13 physicians planning to construct an office building in Natchez had second thoughts -- they're now looking at a site across the river in Louisiana, a state that has tort reforms such as a cap on noneconomic damages.

But medical-lawsuit abuse takes its heaviest toll on patients -- by driving up the cost of their office visits, diagnostic tests and prescriptions, and by reducing access to physicians. It's a "lawsuit tax" that has got to stop. It's not just physicians who pay, it's everybody. We can't afford to waste resources on a legal system run amok, not when tens of millions of Americans lack health insurance.

It's become a crisis not only in Mississippi, but also in Florida, Georgia, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Washington and West Virginia. In other states, including Alabama, Arizona, Illinois, Massachusetts, North Carolina, South Carolina, Tennessee and Virginia, a crisis is barreling down the tracks.

Driving it are out-of-control liability awards. Jury Verdict Research Inc., tells us that in just a one-year period -- between 1999 and 2000 -- the median jury award nationally increased 43%. That's seven times the rate of inflation.

Even more telling -- the proportion of jury awards topping $1 million increased from 34% in 1996 to 52% in 2000. Now, more than half of all jury awards top $1 million, and the average jury award has increased to about $3.5 million.

I witnessed the concern in our nation's capital about this crisis during a late July trip to Washington, D.C., that took me to both ends of Pennsylvania Avenue.

The visit was productive, and a big reason why was the help of U.S. Rep. Roger Wicker (R, Miss.), my hometown congressman in Tupelo, who arranged meetings with the leadership in the House of Representatives.

On July 25, AMA President Yank Coble, MD, AMA EVP and CEO Mike Maves, MD, and I had a great discussion with House Speaker Dennis Hastert (R, Ill.).

We met also with Majority Whip Tom DeLay (R, Texas), Deputy Whip Roy Blunt (R, Mo.), Judiciary Chair James Sensenbrenner (R, Wis.), Labor, Health and Human Services Appropriations Subcommittee Chair Ralph Regula (R, Ohio), Ways and Means Chair Bill Thomas (R, Calif.), and Ways and Means Health Subcommittee Chair Nancy Johnson (R, Conn.).

It was an invaluable opportunity to tell these national leaders about the issues important to organized medicine. First on our list was medical liability reform. Specifically, we expressed our strong support for HR 4600, the bipartisan Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act, which now has more than 100 co-sponsors.

Sen. John Ensign of Nevada just introduced the companion bill -- S 2793 -- in the Senate.

The HEALTH Act would limit the number of years during which a plaintiff can file a suit, allow injured patients to recover for economic damages but cap noneconomic damages, and ensure that patients get a fair portion of their awards.

These reforms are not part of some untested theory -- they work. The HEALTH Act is modeled after California's Medical Injury Compensation Reform Act enacted in 1975.

MICRA has stabilized the medical liability insurance market in California, increased patient access to care and saved more than $1 billion per year in liability premiums.

The White House certainly gets it. On my same trip to Washington, D.C., I met with President Bush's top adviser Karl Rove and other key aides, who outlined President Bush's commitment to medical liability reform.

And AMA President-Elect Donald Palmisano, MD, took part in a small-group discussion on the issue with President Bush immediately before the president made a major address on medical liability reform on July 25 in Greensboro, N.C. President Bush spoke out again on the issue in Mississippi on Aug. 7.

"The lawsuit industry is devastating the practice of medicine," Bush says. "Our badly broken medical liability system is responsible for higher costs for patients, for lower quality of care, and for decreased access."

President Bush believes that the medical liability crisis is a national problem that requires a national solution. That tells you how serious this issue is, how widespread it's become, and how pressing is the need for a solution.

Action in Washington can't come soon enough. Unfortunately, our opponents are strong, well-funded and at least for now, have the votes in the U.S. Senate. During the Senate debate on prescription drugs in late July, Sen. Mitch McConnell (R, Ky.) offered a medical liability floor amendment that included some tort reforms, but not a cap on noneconomic damages. It didn't pass -- the amendment was tabled by a 57-42 vote -- but it did give us a better idea of which senators are with us and which need more education.

So we need to keep pushing this issue at the state level as well. In Nevada, the medical liability crisis was so bad that Gov. Kerry Guinn called a special session -- and within four days, important legislation that included significant improvements was enacted and signed into law. This shows success is possible, but we have to work at it.

We need your help. Inform your patients about what you -- and they -- are up against.

And in September, the House Judiciary Committee plans to mark up HR 4600, the HEALTH Act. And the House Republican leadership plans to schedule a floor vote on this bipartisan reform legislation before the November elections.

Contact your representatives and tell them to support HR 4600. The AMA makes it easy with our Grassroots Action Center Web site (http://capwiz.com/ama/home/). There you'll find information on issues and on ways to contact your representative.

To find a solution and make it stick, we urgently need your support - and your resources. We face a committed, well-financed foe. We have to mount our own fight. Contribute to AMA's Fund for America's Liability Reform online (http://www.ama-assn.org/ama/pub/category/8552.html). If you haven't contributed -- do it now. And if you are not a member of the AMA, join us. We need you, and we are stronger with you.

Dr. Hill, a board-certified family physician in Tupelo, Miss., was AMA board chair during 2002-03 and served as president during 2005-06.