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Family Hx
Collateral Damage
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| For me and my family—my husband, my father, my brother—the Florida "malpractice crisis" isn't an
abstract legal concept; it has affected us personally.
I am surrounded by surgeons, and serve as legislative secretary for the North Florida Surgeons, a group of twenty general surgeons. And over
the years my life and the lives of my family have been directly touched by this story.
My father, for example, is a general surgeon currently practicing in Marianna, Florida. Trained in the Navy in Virginia, he settled down in the Florida Panhandle in the 1960s. His "old-timey" training meant he came out of residency doing not only general surgery and trauma, but disciplines such as family practice, obstetrics, and orthopedics as well. In the 1970s my father was with the Hartford Company, paying about $2000/year for 1 million per incident/3 million aggregate. He received a notice from the Hartford that they were canceling his insurance. The reason? They weren't selling malpractice in the State of Florida for the high risk profession of surgery. No matter that he hadn't been named in a single suit during this period. My father went self-insured (but not by choice) until the FMA formed an insurance company for "high risk specialties" physicians who could not find coverage—a company that subsequently failed. Finally my father obtained insurance with St. Paul for about $5-6000/year for 1 mil/3 mil, but that company pulled out of Florida in the early 80s because of the increase in suits filed and high awards given in medical malpractice cases. At that time my father, realizing he couldn't afford competitors' rising premiums, was forced again into self-insured status. Even though he was the only surgeon in the five-county area, the only "high risk specialist," he couldn't find affordable coverage. He predicted that we would see horrible things happen to medicine in the state of Florida regarding the professional liability (medical malpractice) issue... and he was right. With this vision of the future in mind, my father began taking asset protection measures. During the same time period in which my father was wrestling with coverage problems, I was finishing up college and working as a physician assistant. Since those days I have worked directly with many physicians. I understand the long, frequently unpredictable nature of the medical practice and the immense stress of their careers, but I also see how much physicians truly love the human body that God has created and how there is really an "art" to taking care of patients. During most of my involvement in medicine I had very little understanding (and in fact, sadly, very little interest) in trying to put together the impact of what was happening to medicine in Florida. It didn't directly affect me as a physician assistant, so why care? I remember my father trying to explain the significance of St. Paul's departure to me, and in all honesty it went way above what I was interested in discussing. History repeating itselfThat would all change soon enough. By 1990 my brother Richard Brunner, a surgical resident training at the "U" (Shands Hospital-Jacksonville, formerly University Hospital), had entered private practice with my father. My brother, being trained in a more modern specialist perspective than our father had been, concentrated on general and vascular surgery, a large portion of his practice being trauma. As the first serious rumblings of a "crisis" happening were heard in South Florida, family history repeated itself. My brother (classified as a high-risk specialist) found he couldn't afford the premiums with the income of a small-town practice, and was forced to go self-insured. Focusing on raising two children, and no longer a practicing physician assistant, I gradually became out of touch with the status of medicine. I was disturbed, however, to hear from my South Florida PA colleagues that they were becoming targets in lawsuits along with the MDs and DOs. Meanwhile, my husband Jack, a trauma/ICU surgeon at the "U," decided to leave the teaching hospital and enter private practice. We both loved the beautiful city of Jacksonville, with its waterways, small-town pace, and family environment, and so made the decision to stay in Florida. Jack entered private practice, paying $26,000 for 1 mil/3 mil of malpractice insurance. We in the medical community continued to hear of things, bad things, happening in South Florida. Through my involvement in the Medical Society Alliance I was lucky enough to meet Cheryl Dolan, a political activist on the state and federal levels, and lobby with her in Tallahassee during the Florida Medical Association's Days at the Capitol. The importance of placing pro-medicine legislators into positions of political power was beginning to knock at my brain's door. In 1993, my brother and father were named in a suit that would turn into four years of expensive litigation, despite their both being ultimately dropped from the suit. Because of this costly lawsuit, Richard decided that to protect his personal assets he (and my father as well, given the corporation arrangement of the practice) should obtain formal insurance. They were able to obtain insurance for $500,000/1.5 mil from Wilson Insurance Company at $28,000 per year each. Tough choicesFast forward to January 2002. My brother and father decide they will go self-insured again when told that Wilson Insurance has left the state, and that a comparable policy would now be $78,000 per year each. They simply can't afford it. My father, a skilled, experienced surgeon, decides to stop practicing surgery. Richard decides to continue his surgical practice in the hometown he loves even though he knows that the lack of formal insurance puts his personal assets at risk. He practices in a rural, 107-bed hospital, the only general surgeon for a five-county area that takes call thirty days a month for his personal practice and fifteen days per month for the ER. In May 2002, the North Florida Surgeons (NFS) group, of which my husband is a member, learns that AHI is leaving Florida. NFS has been paying approximately $29,000/year per surgeon for 1 mil/3 mil of coverage. The group begins the search for both member liability coverage and corporate coverage. It's a frantic search to meet a deadline by June 30 so that they can remain open. Should they close their doors, general surgery at seven hospitals would be drastically affected. The search is limited—in 2002 there are fewer than ten insurance companies in the state of Florida writing new policies. A factor complicating and adding stress to this frantic search for coverage is the fact that several of the larger hospitals in our area will not allow physicians to choose the option of being self insured, still requiring formal liability insurance at different levels. NFS finds insurance via a non-standard company for 500,000/1.5 mil at the average cost of $88,000 per surgeon, but can't find corporate liability insurance. It's important to understand that in a suit if your spouse is a member of a corporation and one of his/her colleagues has a lawsuit that the trial attorneys are able to "feed" up the line to the corporate assets. In other words, even if your spouse is not involved in a suit, your spouse's financial assets, i.e., accounts receivable, could be taken. My husband's group has been told that should the policy renew next June 30, 2003, they should expect a 40-50% increase. This calculates to about $160,000 for a policy that would offer 500,000/1.5 mil worth of coverage. It doesn't take a CPA to figure out that business decision. And as the "feeding frenzy" of the trial attorneys has shifted their hunting for money more to North Florida and the panhandle, my family faces the "ding" of potential lawsuits. I urge my father to quit medicine. I talk about asset protection with my brother. He, like the rest of us, is working on asset protection while at the same time considering a move to a more tort-friendly state. If my father retires, and my brother leaves, then what happens to all those patients? Of course, you can't discuss premiums and rates without discussing the reality of lawsuits. The definition of "medical negligence" per F.S. 766.202 is "medical malpractice, whether grounded in tort or in contract." To prove a medical liability claim, as laid out in F.S. 766.102, a claimant simply has to "prove by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider." In simple terms, there only has to be a 51% likelihood that the physician was negligent, not clear and convincing evidence. The average surgeon risks many lawsuits in his or her career. But does a maloccurrence/complication/bad outcome always equal malpractice? Yes, if you ask the personal injury attorneys. According to the personal injury attorneys, any complication or bad outcome or maloccurence does equate malpractice. And, they have done an excellent job of promoting this myth to the general society while we, the medical community, have sat by the sideline. Take a look at the number, frequency, and size of the PI attorney ads that support and propagate a "fast-food" mentality. The general public has completely bought into this. We expect everything on time and perfect. And, if it's not, well, then, it's got to be someone else's fault. We expect the human body, and therefore, the practice of medicine, to be perfect, simply done in black and white with no grey areas. And, hey, if you are lucky, you win the "lawsuit lottery." These same attorneys claim they are making Florida safer by penalizing the "bad" doctors of Florida. In truth, in any profession—be it medicine, law, or postal delivery—there are certainly less-than-desirable people, but there are governing boards to oversee and weed out the truly negligent ones. And Florida has a Board of Medicine that is graded excellent. Of note, there are several lawyers on the Board of Medicine and not a single physician on the Trial Bar Board. Why is that? A further note: the same PI lawyers whose ads claim they are "for the people," take 40%, after expenses, of any awards, and are vehemently opposed to a limit on their fees. "Don't take this personally..."That's reportedly the most commonly said thing by plaintiff attorneys to a doctor entering a room for mediation during lawsuit proceedings. Hello? This IS personal! It's personal because physicians go into training because of their love for the art of medicine and the human body. One reason the medical community has the problems it does is because we have allowed other people—specialists in business and politics—to make decisions for us, as we have gone about doing what we are trained for and what we desire to do: taking care of our patients. There's no way it can be anything but personal. My father, brother, and husband love their patients. When their patients struggle through an illness they personally and emotionally struggle as well. They spend endless hours with their patients, they spend countless time discussing the case with consultants, they lose sleep thinking of the patient, and they truly care about the human being before them. In contrast to some trial attorneys, the physicians in my family don't look at each patient as a way to make money. They don't ask the patients they see in the middle of the night if they are going to get paid. They don't tell the trauma patient, "Sorry, our hours are 9 to 5." They don't tell the gangrenous bowel patient to wait because they have a soccer game or dance recital that they will miss, again. No, they go when they are called, twenty-four hours a day; they answer the phone twenty-four hours a day; and they are there for their patients twenty-four hours a day, because that's what they love to do, what they're trained to do. Digging inI refuse to give up without a fight. Giving up means we, my family, leave Florida. Surrendering to the issues for our NFS group means the terrible loss of many general surgeons in North Florida. It means that access to quality surgical medicine in our area will be severely limited. If meaningful tort reform does not pass and we are faced with difficult decisions, I want to be able to look back and say I fought as hard as I could. Too many members of the medical community, spouses in particular, believe that this is just a pesky little problem that will eventually resolve itself—somehow—and everything will be just fine, and "back to normal." Not so. I took on the position of Legislative Secretary for North Florida Surgeons because I wanted to do whatever I could to help in the battle for tort reform. I am not fighting simply for my own personal family or my brother's family, or my parents, or the families of the many friends I have come to love through the Alliance, but also for the hundreds of thousands of Floridians who are unaware of the looming disaster. It has been a rapid educational process, but one that has opened my eyes wide to the game of politics. If you don't engage in the game you will surely lose. I have become a hard-lined advocate for medicine. The message needs to get out to the public—to your patients—that good, experienced, caring physicians are going to leave, retire, or limit their practices if solid tort reform is not passed, and soon. We—the medical community—must help our patients realize that unless they join in the fight with us they will be unable to find high risk specialty physicians, and that the key to resolving this crisis lies in the hands of our politicians. Access to care will be affected. This will be a long, hard battle. As a friend recently said to me, this is not a sprint, but a marathon. More premium hikes and policy cancellations are just around the bend, and they will take a toll on our families and our patients. We have to get up to speed and do it quickly—so either join me in this marathon, or please get out of my way.
Jacksonville Medicine / November-December 2002
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