The Dartmouth Beacon

Would quicker intervention have saved Lawson’s life? Possibly, but the question is now futile. An easier question to answer is what caused such a crisis to occur in the first place? What made a Level One center, which serviced more than 11,000 patients a year, close its doors? The answer: skyrocketing medical liability costs forced Las Vegas doctors to cancel their insurance policies. Faced with this problem, many had chosen to move to other states, change specialties, or retire early from the practice of medicine. Tragically, this is not a problem unique to Nevada. The American Medical Association lists 20 states that now are in an outright medical liability crisis. In these states, high-risk specialists such as obstetricians, cardiologists, and neurosurgeons, have stopped providing trauma care, stopped performing complicated surgical procedures, or left the states entirely.

New Hampshire is not yet a state in crisis, but it is listed as a state “showing problem signs.” The New Hampshire Medical Society believes that medical malpractice reform must take place in the state soon, as physicians are already beginning to leave because of rising insurance rates. Senator Judd Gregg states, “We’re losing good doctors, in the OB area especially, because they’re not able to pay their premiums on their malpractice insurance. There are places in New Hampshire where we don’t have doctors to deliver babies.” If a Dartmouth student today were to suffer from any kind of head trauma, on any given night there is only a 50% chance a neurosurgeon would be on call to care for them.

Although this crisis affects physicians, ultimately it is the patients they serve who suffer the most.

In a speech giving an overview of the American healthcare system, Senate Majority Leader and physician Dr. Bill Frist noted that in any given year 28.3 million Americans will visit emergency rooms as the result of accidents. Of these 28.3 million, 99% will recover after receiving lifesaving care. Many of these patients depend on treatment during the initial so-called “golden hour,” and any delay can mean the difference between life and death. As the crisis worsens, patients must suffer longer waits and sometimes be diverted to other medical facilities which have the needed specialists. A recent study shows that 76% of emergency rooms have recently diverted patients because of a lack of specialty physician coverage. And in the most extreme cases, such as Las Vegas in 2002, trauma centers have been forced to close.

An exponential increase in the number of medical malpractice lawsuits has resulted in this astronomical increase in insurance rates. Current lawsuit costs add up to around $246 billion per year–averaging to $800 per year for every person in America. The American tort system serves a vital purpose: to compensate those who have been wronged by reckless action and to hold those who committed such actions accountable. Yet too often in the case of medical malpractice, justice is arbitrary. Patients who are legitimately wronged are not compensated or are encouraged to settle out of court. Incompetent doctors continue practicing. Patients spend years waiting for cases to go to trial. Plaintiffs pay lawyers upwards of 40% of any recovery, and awards for “pain and suffering” are often grossly disproportional to the actual injury. Gary Woods, a past president of the New Hampshire medical society, writes: ‘If you’ve been harmed in some way, everyone feels you should have your proper recompense. Remember, the system was meant to make you whole, not to make you rich.” Many people today, however, enter into a medical malpractice case in the hopes a talented lawyer or a sympathetic jury will award them a large verdict.

The prevalence of medical malpractice cases makes insurance companies view physicians as risky clients. Ultimately, if a doctor practices medicine for enough time, chances are he will be sued. In another speech, Dr. Frist talks about the situation in his home state of Tennessee. In this state, 70% of doctors who have practiced for more than 10 years have had a claim filed against them. This is true of 92% of OB/Gyns and 100% of cardiac surgeons. In many states, there are only one or two insurance companies left that will take the risk of covering physicians. According to the American Association of Neurological surgeons, from 2000-2004, the national average medical liability premium for a neurosurgeon increased 100%, from $45,915 to $91,848. In some states, neurosurgeons and other specialists pay an excess of $400,000 per year.

This increase in malpractice lawsuits has led more and more physicians to practice defensive medicine. Doctors are encouraged to order tests of no utility to safeguard from a patient suing them. Many of these tests, such as MRIs, inevitably result in several false positives, which must then each be investigated, causing the patient even more distress. Each of these tests has a cost. The Quarterly Journal of Economics estimates that $50 billion a year is spent on unnecessary test procedures designed only to protect doctors and hospitals against malpractice claims. In contrast, there are 43 million Americans that currently do not have health insurance. That $50 billion, and the millions more spent on actual lawsuits, could go a long way towards providing these individuals with needed insurance.

In an attempt to solve this medical crisis, many states have tried to pass legislation setting caps on the amount of money awarded in malpractice cases for non-economic damages. For example, Nevada has recently passed a law setting a $350,000 cap on pain and suffering awards to each plaintiff from each defendant. President Bush has proposed setting a national cap at $250,000. While such caps are an important first step, alone they are not sufficient to solve the problem. All laws that impose caps invariably have loopholes whereby a jury can award a greater amount of money. For example, the Nevada law sets the $350,000 cap, unless “the court determines by clear and convincing evidence that a higher award is justified.” Also, caps on non-economic damages do nothing to prevent frivolous lawsuits from coming to trial. Clearly, further steps are needed.

Recently, New Hampshire lawmakers have attempted another solution. The New Hampshire Medical Society has been pushing for the creation of a screening panel consisting of a judge, a doctor, and a lawyer, that would review all medical malpractice claims and decide which were frivolous and which should go to trial. A similar system has been operating in Maine since 1986, and doctors there pay, on average, 40% less for malpractice insurance than doctors in New Hampshire. The screening panel has found bipartisan support in the New Hampshire legislature, but has been opposed by the New Hampshire Trial Lawyers Association. Last year, the proposed bill died in committee late in the legislative session. If New Hampshire lawmakers are ultimately able to pass such a bill, it will be a vital step towards reforming the medical malpractice system. Ideally, this system would weed out frivolous lawsuits while still ensuring that truly negligent doctors are punished.

An even more effective solution has been supported by Senator Frist, who has called for the creation of special health courts. In such courts, judges who were experts in the field of medical malpractice would take the place of juries. This proposal makes sense. If a patient sues a doctor for something such as failing to order a CT scan for a routine headache that later turns out to be brain cancer, it is unlikely that the average jury would have enough medical knowledge to effectively dispense justice. In special health courts, judges would be able to distinguish reliably between good and bad medical care and act accordingly. This would result in patients and doctors both receiving faster, fairer, cheaper, and more-consistent justice. Special courts already exist in the areas of worker’s compensation and vaccine liability, and studies show that 62% of Americans favor creating them for medical malpractice cases. Senator Frist has urged the government, “to set up an expert medical court system with transparent decisions, limits on punitive damages, and scheduled compensatory damages to provide rapid relief to truly injured patients (instead of trial lawyers) and hold negligent doctors accountable.”

In order for the American healthcare system to continue to function, medical malpractice reform is necessary. Positive steps have been taken, such as the placement of caps on non-economic damages and the creation of screening panels, but such solutions need to become more widespread. More sweeping reforms are necessary, such as the creation of the aforementioned special health courts. All too often, states do not begin to explore solutions for reform until a crisis has occurred, as was the case with the Nevada healthcare system. Once a state’s healthcare system has fallen apart, it is difficult to find doctors to come back to it, even after reforms have been passed. When a patient comes to a doctor with a history of heart problems, it is much easier to practice preventative medicine than to wait and perform quadruple bypass surgery after the patient suffers a heart attack. In the same way, it is essential to reform the healthcare system now, rather than waiting until it has already collapsed around us.