The Paralyzing Effects of Medical Malpractice
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All of us who practice medicine have a different reason for having chosen our avocation. There are those who come from a long line of family medical professionals, others who have excelled in scientific endeavors throughout school and wanted to use that capability in their life's work, and still others whose altruistic desires prompted a career in medicine. To some degree, all of these reasons were involved in my choice of a career in neurological surgery. When I finished my neurosurgical training at age 33 and finally began to put it to use, major advances in neuroscience were happening at a dizzying rate, and these scientific discoveries have continued unabated. Though my love of medicine and enthusiasm for treating people with diseases of the nervous system remains strong, my ability to act-ually practice neurosurgery and provide adequate care for patients with these diseases is being seriously jeopardized by what can only be called a crisis in health care.
Over the last year most Kansas City physicians, and especially those in high-risk specialties such as neurosurgery, obstetrics, orthopedics, anesthesia, and trauma surgery, have experienced tremendous increases in their liability insurance premiums. My partners and I have experienced a nearly 100% increase in our premiums, and others' premiums have risen 200 or even 300%. Most neurosurgeons on the Missouri side of the state line are paying over $100,000 for this insurance, and my colleagues in some states are paying as much as three times that. This is money that does nothing to improve health care delivery in Kansas City. It does not make us better or more careful physicians and surgeons, provide better treatment and medicines, or provide better access to medical care in general. On the contrary, this has served to restrict medical care for some of the sickest patients in the area.
This is not just a crisis about the availability and affordability of medical liability insurance for those of us who treat high-risk patients. It is about a looming crisis of patient access to care. To begin with, Kansas City is underserved with respect to neurosurgery. Some of my colleagues have decided to restrict their practice to surgery that is less risky, choosing not to perform intracranial procedures or take care of trauma patients, where there is a higher chance of a bad outcome. Many brain surgeons are no longer doing brain surgery. Some area hospitals that formerly took care of multiple trauma patients, whose emergency rooms and hospitals were staffed with trauma surgeons and neurosurgeons, are shutting their doors and diverting patients with serious head and spinal cord injuries to other locations. Often, life-saving moments are lost while looking for an emergency room that will accept these patients. Those of us who practice primarily at hospitals that still accept these patients have seen a tremendous increase in these transfers, which will only continue to grow as more physicians stop seeing high-risk patients.
And unfortunately our ability to recruit any new physicians to the area to help with this crisis has been seriously crippled. On the contrary, physicians that are already here are leaving. According to a recent nationwide survey of neurological surgeons conducted by the Council of State Neurosurgical Societies, Missouri is one of 25 states facing a "severe" liability crisis, defined as a greater than 50% increase in malpractice premiums or average premiums at or above $100,000. The survey found that 43% of the respondents have or are considering restricting their practice to less risky procedures, 29% plan to or are considering retirement, and 19% plan to or are considering moving to a more favorable location. Mississippi has lost 30% of its neurosurgeons in the past two years. Last year alone, a staggering 10% of the nation's neurosurgical workforce retired.
This is not just a crisis in high-risk surgery patients. One of the largest women's health and obstetrics groups in the metropolitan area has stopped practicing in Missouri altogether.
Most small business men and women will note that liability premiums in general have risen for everyone over the last few years. Businesses are paying more for this type of insurance for a variety of reasons. This cost is then passed on to the consumer, raising the cost of the particular good or service that is provided. In the practice of medicine, however, the practitioner is unable to pass that cost along to the health care consumer. In reality, in spite of the increased cost of doing business, a physician's payment per procedure or doctor's visit has decreased steadily over the last decade. It is, however, passed on to the consumer in the form of defensive medicine, that is, the use of many more tests and procedures than are really necessary to hopefully avoid litigation. Every Kansas Citian will pay these heightened transaction costs through higher premiums and out-of-pocket expenses, in addition to the cost in time and inconvenience by being subjected to unnecessary tests.
The reason for the crisis is certainly multi-factorial. It is a sad observation that one out of every 6 practicing doctors will face a malpractice lawsuit every year, and in high-risk specialties, each physician will face a lawsuit an average of every 2 and a half years. It is useful to know that 70-80% of these suits are found to be without merit and result in no payment to plaintiffs. These cost an estimated $23,000 each to defend.
But jury verdicts and the size of individual awards have recently become incredibly unpredictable. Consider that Texas has had a $269 million verdict; many states have seen greater than $100 million verdicts; Philadelphia has had multiple verdicts over $50 million in the last two years. Insurance companies claim they simply cannot put away enough money to protect against those kind of astronomical verdicts.
Trial lawyers counter that average claims have recently decreased, and that the real reason for the "crisis" is that insurance companies are trying to recoup their losses in the financial markets over the last few years. Whatever the reason, I know that by moving our practice across the state line into Kansas, my group would pay half of what we're now paying for professional liability insurance. I could move to California and pay one-third of what I'm paying now in Missouri, despite the fact that California has a cost of living that is two and a half times what it is here in Kansas City.
What is the difference? California and Kansas are two of the states with functional caps on non-economic damages. (Missouri technically has a $557,000 cap, but because of an appellate court decision a year ago, it has been rendered effectively non-functional.) In California and Kansas, patients who are victims of malpractice are entitled to 100% payment of lost wages and medical expenses in periodic payments (rather than lump sum awards) with no limit, and up to $250,000 for non-economic damages (pain and suffering), and attorneys contingency fees (which commonly amount to one-third to one-half of the plaintiff's award) are limited, so the victim takes home a higher percentage of the award. Before passage of these reforms, California's malpractice insurance rates were the highest in the country. Since 1975 when these reforms were instituted, California's rates have risen 167% compared to 505% in the rest of the country. In addition, in California a higher percentage of awards goes to the victim than in other states without these limits.
There is no doubt in my mind that tort reform will control costs. Consider this incredible fact: from 1817 to 1995, Mississippi juries handed out $1 million awards in less than 50 cases. Since 1995, they've done it more than 100 times. Taken at its bare essence, if there were no lawsuits, there would be no malpractice insurance crisis. Patients need to be fairly compensated for wrongs done, but insurance is not a magical, limitless lottery. It would be wonderful to make every victim of malpractice a millionaire, but the health care system simply cannot sustain that. If our society wishes to continue to pay out exorbitant awards, it will need to accept exorbitant premiums. Exorbitant premiums mean exorbitant escalation in the cost of health care, which will soon result in dramatic decreases in access to critical medical care.
The political realities (to whom our elected representatives are financially beholden) make the prospect of meaningful tort reform in Missouri unlikely at present. Federal professional liab-ility reform legislation, however, is before the Congress at present. Though the current premium crisis is undoubtedly multi-factorial, we can only hope that our elected representatives will enact meaningful tort reform as a first step in correcting the lottery-style civil justice that pervades malpractice actions, for the benefit of physicians and their patients.
Dr. Paul Camarata is a practicing physician at the KC Neurosurgery Group. He is a former Treasurer of the Congress of Neurological Surgeons. He can be reached by phone at 816-561-4655 or by email at pcamarata@kcneurosurgery.com.