TCS Daily

The Threat to Medical Innovation

By Sydney Smith - July 11, 2003 12:00 AM

The dog days of summer are here. And like mad dogs and Englishmen, Senate Republicans ventured into the heat to introduce their version of medical liability reform -- the Patients First Act of 2003. For although the measure called for sensible reforms such as a cap on awards for pain and suffering, a statute of limitations for medical liability cases, and quality assurance measures for "expert witnesses," it had about as much chance of surviving Congress's dog day session as the proverbial snowball.

For starters, the measure had zero support from Senate Democrats, who seem blithely uninterested in any sort of tort reform. (Not surprising, when you consider where they get their
.) A spokesman for Senate Majority leader Bill Frist told the New York Times last week that attempts over the past six months to build a bipartisan consensus on the issue have gotten nowhere. A handful of Democrats have preferred instead to concentrate on regulating the amount malpractice insurance companies can charge and using tax credits for physicians to offset the high cost of premiums. That approach is misguided, at best, for the crisis isn't just about money. It's also about access to adequate malpractice insurance.

Most hospitals require physicians to carry malpractice insurance from a company that has a financial rating of "A minus" or better. When insurance companies suffer a down-grade, which has been happening at an alarming rate lately, doctors either lose their hospital privileges or have to find another insurance carrier. Losing hospital privileges means going out of business for surgeons and other specialists who provide hospital-oriented care. And finding new malpractice insurance often isn't an easy task -- especially in states that have a history of large jury awards. Other malpractice insurance companies, fearing a downgrade in their financial ratings, aren't anxious to provide insurance to physicians who have a high probability of being sued. And in today's environment that's determined by geography and specialty, not by competency. Limiting the premium amounts without also limiting the amount of damages companies pay isn't likely to improve the situation. It will only make it worse. And tax credits? They only work if physicians are able to find insurance.

While Senate Democrats fiddle, their allies are doing their best to derail reform before it even begins. Already the Foundation for Taxpayer and Consumer Rights, a consumer advocacy group founded by --surprise -- a lawyer, has demanded that Senator Frist remove himself from the debate since his family has a financial interest in a hospital system as well as a medical liability insurance company. And another advocacy group, which according to the Times is supported by the American Trial Lawyers Association, plans an advertising campaign based on the same manipulative emotional techniques that have worked so well for trial lawyers in the courts. The group's executive director told the Times, apparently without irony:

"This Congress has a very bad track record of supporting powerful special interests at the expense of average Americans. We want to make sure that real stories of real people are in the debate on medical malpractice."

And there's the crux of the problem. Those who fight against tort reform are ignoring the real stories of real people who are being harmed by the status quo.

There are real women in Pennsylvania and Oregon and elsewhere who can't find a doctor to deliver their babies. There are real women in Florida who have to wait five months to get a mammogram because radiologists can't afford the risk of reading them. There are real people in nursing homes in Ohio and elsewhere left without a doctor because insurance companies are unwilling to cover the risk. There are real people who suffer real trauma in Nevada and West Virginia and elsewhere who can't find a surgeon to treat them.

Every time a doctor closes his practice, thousands of patients are left without healthcare. Every time a surgeon stops caring for emergency room cases or an obstetrician stops delivering babies or a radiologist stops interpreting mammograms, other surgeons and obstetricians and radiologists have to fill in by working longer and harder. And the fatigue of working harder and longer makes them more prone to errors in judgment -- and more likely to commit real malpractice. Every time a malpractice insurance premium doubles or triples, physicians are forced to cut costs elsewhere. Nurses, medical assistants, and receptionists lose their benefits, or worse, their jobs. New equipment goes unpurchased. And new technology goes unadopted -- not worth the cost in dollars or risk.

And without the willingness to take risks, medical innovation stagnates. Legend has it that one of the first successful trials of penicillin occurred in a critically ill obstetrics patient, after her despairing doctor found inspiration in a Reader's Digest article. Hard to imagine that happening in the heat of today's litigation crisis. Unless the doctor was a mad dog or an Englishman. Or a Republican.

The author is a family physician who has been in private practice since 1991. She is board certified by the American Board of Family Practice, and is a Fellow of the American Academy of Family Practice. She is the publisher of MedPundit.

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