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Liability crisis at breaking point: Doctors wait for ray of hope

It's time for Congress to act on effective medical tort reform.

Editorial. Feb. 10, 2003.

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Surgeons in Wheeling, W.Va., started their new year with 30-day leaves of absence to protest skyrocketing liability insurance premiums. Only a last-minute plea by Pennsylvania's governor kept dozens of physicians in Scranton from following their lead and closing up shop. At press time, New Jersey doctors were planning a partial work stoppage -- also over liability insurance rates.

These extreme protests came after rallies by physicians -- and patients -- swept across the country last year, warning of trouble ahead.

Physicians did not take these actions lightly. They were prompted by crises in care, as they watched colleagues flee states, retire early, stop offering high-risk services or take severe measures to cut practice costs.

For example, the Wheeling surgeons took their leaves after the area lost its only three neurosurgeons and one-third of its general surgeons.

Forty-four percent of physician practices responding to a Medical Society of New Jersey poll reported that out-of-control premiums hurt the quality of their medical services because they had to defer equipment purchases, cut certain services or lay off staff.

Physicians simply can't handle the massive liability premium increases insurers have been imposing in states without effective tort reform. In Pennsylvania alone, major carriers' rates jumped as much as 147% between 1997 and 2001. That spike was followed by 50% increases in 2002 and this year, according to the Pennsylvania Medical Society.

But amid the gloom, there have been some developments. Last year, Ohio, Mississippi and Nevada passed tort reform packages, and Pennsylvania took some incremental steps to address physicians' concerns. And the AMA predicts that more than 30 states could take up the tort reform issue this year.

Physicians aren't looking for a lawsuit shield for doctors who have harmed patients. They are seeking an end to what they call "jackpot justice." The median award in medical liability cases is now $1 million, and outsized settlements are jacking up premiums. Personal injury lawyers all too often file frivolous claims. About 70% of cases are dropped, dismissed, withdrawn or found in the defendant's favor.

Physicians want patients who are harmed by doctor negligence to receive full awards for their economic losses. But doctors want reasonable caps on noneconomic damage awards, limits on attorneys' fees and other sensible reforms.

A model for change already exists. It's California's 1975 tort reform law, called MICRA for Medical Injury Compensation Reform Act, which has kept that state's premium increases down, while rates in other states swelled. And although a handful of states have acted, their changes don't go far enough. In addition, the courts have thrown out several past state laws on constitutional grounds. Some, such as Pennsylvania, are trying to change their constitutions. But that is a long and difficult process.

A federal law is a must.

Physicians have a powerful advocate in this cause. In January, President Bush again proposed a reform package similar to MICRA. It includes a $250,000 cap on noneconomic damages, payments of awards over time and judgments that are in proportion to defendants' fault. His staunch support for effective tort reform is welcomed by physicians everywhere. The U.S. House of Representatives also has been on board. Last year, it passed a comprehensive tort reform package supported by the AMA.

The trouble in the past has been the Senate, which has historically failed to pass tort reform. Physicians have reason to hope this year will be different. Republicans now hold a majority in the Senate, and Sen. Bill Frist, MD (R, Tenn.), was selected as majority leader.

But physicians must continue to press Congress to act. They should contact their senators and tell them to follow the lead of the president and the House, and embrace comprehensive tort reform this year.

The business as usual of unchecked awards is unjust for the physician. And it is unhealthy for the patient, who at the hour of need is too often finding the doctor is afraid to deliver a baby or perform a risky operation, or is just plain gone.

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