The Medical Liability Crisis
Questions and Answers
from the American Medical Association
Q: What are the AMA’s current concerns regarding medical liability (malpractice)?
A: The American Medical Association wants to ensure that patients have access to health care when they need it. Excessive jury awards in recent years have caused liability insurance premiums to skyrocket. As a result, a growing number of physicians can no longer find or afford liability insurance. Without insurance, physicians in some parts of the country are being forced to restrict their practices – avoiding high-risk, but necessary, medical procedures such as delivering babies. Others are simply retiring early or relocating to states where reforms are in place and premiums are more affordable. The bottom line: patients in crisis states around the country are seeing their physicians disappear and are finding it more difficult to get the care they need. This has got to stop.
Q: How are patients being affected?
A: Patients living in crisis states are watching helplessly as their doctors retire early, leave the state or stop offering certain procedures, such as delivering babies or complex surgical procedures. Patients are watching helplessly as maternity wards, trauma centers and rural health clinics are forced to close. Access to patient care in the crisis states is heading for a grave meltdown, and there are increasing problem signs of the same happening in states not yet in crisis.
Q: What does the AMA think should be done to address the current crisis?
A: The AMA strongly supports a national law that is based on the reforms California has had in place since 1975. California’s law (also known as MICRA) puts a reasonable limit – $250,000 – on non-economic damages. Non-economic damages – also referred to as “pain and suffering” – have been a magnet for trial lawyers and a big factor driving the current crisis. The California model caps non-economic damages at $250,000, while still allowing patients full and complete access to the courts. Under California law, patients still have the ability to recover 100 percent of their economic damages, including complete compensation for medical expenses, rehabilitation costs, childcare costs, all current and future wage earnings that are lost, and other economic loss. We need a law that is fair for all, and California’s law provides that balance.
Q: Does the AMA support President Bush’s recent medical malpractice reform proposal?
A: The AMA strongly supports the President’s call to bring common sense back to the legal system. The current medical liability system is broken and in need of repair. Medical liability premiums have reached $200,000 a year or more in some high-risk specialties and 12 states are in crisis. Thirty more states are on the brink of crisis. If responsible action is not taken, more physicians are going to be forced from their practices and patients living in crisis areas will find it increasingly difficult to get the full-range of services they need. In addition to protecting patient access to care, instituting a $250,000 cap on non-economic damages could save our country as much as $100 billion each year in health care costs, according to a recent study by HHS.
Q: Why do doctors want to limit the amount of money a patient receives if that patient is harmed by a doctor’s negligence?
A: That is not our view at all. The American Medical Association proposes no limits on what patients can recover for their medical expenses, rehabilitation costs, childcare expenses, all current and future wage earnings that are lost, including employer-based benefits, and any other economic-type losses. We do support, however, a reasonable cap on non-economic damages – which are unpredictable, subjective damages that have spurred the “lottery” mentality over-running our judicial system.
Q: By limiting non-economic damages, isn’t the AMA saying that patients’ pain and suffering isn’t worth anything?
A: Absolutely not. When a patient is harmed by a physician’s negligence – he or she should be fully compensated. But we need a system that works for everyone and not just the select few who receive “jackpot-sized” awards. The current system encourages trial lawyers to search for “lottery” cases to line their pockets. The states that are currently in crisis are those states that either have no cap on non-economic damages, or a cap that is so high it is ineffective. We need to decide: Do we want trial lawyers having access to every dollar they can squeeze from an out-of-control tort system or do we want patients having access to their physicians when they need them?
Q: Does the AMA want to limit patients’ access to the courts?
A: Quite the contrary. The AMA believes patients should have full access to the courts, but let’s make sure that the cases filed by trial lawyers have merit. Currently, 70-80 percent of all cases filed against doctors are dismissed without action. That’s a ridiculous amount of cases that should have never been brought in the first place. We need to work to eliminate these types of frivolous lawsuits because they are driving insurance rates sky high and driving many physicians out of practice. As a physician, if I focused my energies on an intervention that failed 70-80 percent of the time, I would start looking for a new approach. I think the trial bar needs to do the same. Because the current tort system is not working and it’s adversely affecting patient care in this country.
Q: What about those who say the current crisis is the fault of insurers, who are trying to make up for years of losses in the stock market by price-gouging physicians with high insurance premiums?
A: This is just one more smokescreen the trial bar is using to deflect attention from the facts. Insurance companies typically place about 80 percent of their investments in the bond market – not the stock market. And that bond market has provided them a stable return of about 5 percent per year since 1997. Clearly, we need common sense liability reforms. These reforms have stabilized the market in California and can do so for the rest of the country.
Q: Doctors make a lot of money – why are they complaining about an increase in their insurance premiums?
A: Physicians earn good incomes, but that doesn’t make them immune from economic realities. And the reality is – a growing number of physicians cannot keep their practices open if liability rates continue to skyrocket. Keep in mind, we are not talking about the modest increases that most of us pay for goods and services from year to year. We are talking about increases of 100 percent or more in certain areas of the country. The median jury award has risen to $1 million, and doctors who practice in “crisis” states pay double or triple what doctors in non-crisis states pay in professional liability insurance.
Q: What about those who suggest the California insurance market is stable because of Proposition 103, not its 1975 law?
A: The truth is, Proposition 103 has had very little to do with medical liability insurance. Since 1975, California’s medical liability reforms have been responsible for protecting California’s patients and keeping the insurance market stable. Prop. 103 was passed in 1988 to address mainly auto insurance issues. Prop. 103 does not prohibit insurers from raising rates. It says that if an insurer wants to raise rates by more than 15 percent, there must be public hearings. That’s only happened once, and the request was recalled by the insurer after the public objected. Anyone who tells you Prop. 103 is the reason for California’s successful medical liability reforms is not dealing with the facts.
Q: The Institute of Medicine says that doctor mistakes kill 98,000 people a year. Shouldn’t we get rid of those bad doctors?
A: The American Medical Association believes one error that harms a patient is one error too many. Unfortunately, medicine is not an exact science and we know that – despite our best efforts – mistakes do occur. The AMA agrees that bad or incompetent physicians should be removed. That’s why we support strong licensing boards. But let’s be clear about one very important fact – the current liability system does nothing to identify negligence. In fact, a recent Harvard study shows no correlation between medical liability award payments and physician negligence. So while we need to work to make medicine safer, let’s not pretend that the current liability system is the way to go about it.
Q: Why aren’t doctors doing more to improve patient safety?
A: Doctors work everyday to improve patient safety. The AMA founded the National Patient Safety Foundation to do just that. Safety starts with understanding why these errors occur in the first place. To do that, however, we need to create an environment where errors can be identified and studied openly so we can implement safeguards to prevent them. The Aviation Safety Reporting System model is one the medical community should emulate. It’s a system that focuses on finding out as quickly as possible why an error has occurred and what can be done to prevent that error from occurring in the future. So while we need to work to make medicine safer, let’s not pretend that the current liability system is the way to go about it. In fact, a recent Harvard study shows no correlation between medical liability award payments and physician negligence
Q: How do you respond to the charge that 5 percent of the nation’s doctors are responsible for more than 50 percent of the nation’s malpractice.
A: That is a provocative charge based on flawed assumptions by the trial bar. If only 5 percent of the doctors are responsible for most of the malpractice in this country – then why do the vast majority of physicians get sued – many of them, two or three times. The current medical liability system doesn't identify negligence and it doesn't weed out bad doctors – it just increases the cost of medical care and decreases patient access to care. In short, there is no correlation between getting sued and malpractice, but there is clear evidence that the legal system in the crisis states is causing grave reductions in patient access to health care.
Q: Are doctors violating the Hippocratic Oath when they go on strike?
A: Physicians are NOT going on strike. Some physicians have made the difficult decision not to perform elective surgery, but even then, they are taking steps to ensure that their patients have access to emergency care and services. Physicians who have chosen to take a leave of absence are doing so only as a last resort. Many are using to this time to weigh their options, looking for ways to keep their practices open so they can continue caring for their patients and not be forced to limit services, retire early or relocate. Whether physicians leave their practices amid the media glare like they did in West Virginia and Nevada – or are leaving quietly in other communities in crisis – the end result is the same: Patients are seeing their physicians disappear and having their access to health care restricted.
Q: How much lobbying money is the AMA spending on this?
A: The AMA has made medical liability reform its top legislative priority, and we will direct all necessary resources to winning this battle for America’s physicians and patients. We believe the current crisis is one lawmakers cannot afford to ignore. Like physicians, lawmakers have a responsibility to protect patient access to health care. If they choose to ignore this responsibility, the crisis will only continue to worsen.
Q: What is the AMA asking patients to do?
A: The AMA is encouraging every physician and every patient to contact their state and federal representatives and tell them, “Enough is enough—pass medical liability reforms that protect patient access to health care. And pass it now!”
Information compiled from various
sources
by the
Duval
County Medical Society
and North Florida Surgeons
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