Need a Doctor? Call a Lawyer!

Published March 1, 2003

The barriers to affordable health care in the U.S. have long included outdated government-run programs like Medicare and Medicaid and an over-abundance of mandates and regulations imposed on the health care industry. Now, we must include the titanic costs of malpractice insurance.

Litigation is increasing the price of malpractice insurance for physicians, which in turn has increased the price of health insurance for consumers, reduced the supply of physicians, and made health care generally less affordable and less accessible.

Attack on Care Providers

Extreme financial judgments against health care providers work at cross-purposes with efforts to extend affordable health insurance to the uninsured population.

Mega-bucks settlements have made malpractice insurance unaffordable and unavailable to many health care providers. As a result, many doctors are being compelled to retire at the peak of their careers, limit their medical practices to all but the most routine health care procedures, shift their energies into research rather than practice, or move to a state with reasonable malpractice laws.

Nursing home care has been especially hard hit, in part because of the increase in the number of senior citizens served by those facilities. Both the number of lawsuits and the size of awards are trending up.

Between 1995 and 2001, according to a February 2002 study by Aon Risk Consultants Inc., the national average of insurance costs for nursing homes increased from $240 per occupied skilled nursing bed to $2,360. From 1990 to 2001, the average dollar size of claims tripled and the number of claims per bed increased from 3.6 to 11 per 1,000 beds.

Consumers Suffer

The lack of affordable insurance for providers makes it more difficult for consumers to get affordable, accessible health care–especially for high-risk medical specialties, such as obstetrics and neurosurgery, and in underserved rural communities.

With fewer doctors available, we are beginning to experience longer wait times for an appointment, queuing at hospitals, and a shortage of medical specialists trained to tackle the tough medical cases.

We are also experiencing the price inflation caused by “defensive medicine.”

The actions taken by physician-defendants often years before a malpractice suit goes to trial are carefully scrutinized and often judged on the basis of medical standards that were not in place at the time the alleged malpractice took place.

Because they cannot be certain their usual procedures won’t be judged by the litigation system as “lacking” some years into the future, physicians today are adjusting their treatment protocols to cover all the bases. The malpractice lottery thus inflates the cost of medical care by forcing doctors to over-treat and over-test their patients.

In a “Fear of Litigation” survey conducted in mid-April 2002 by Harris Interactive, doctors reported they perform tests and provide treatments they would not ordinarily perform, simply to protect themselves against a potential lawsuit. Seventy-six percent of respondents to the Harris survey felt their ability to provide quality care to patients has been compromised as a result.

This practice of defensive medicine, while useful in a courtroom, does little or nothing to enhance patient outcomes. Every test and treatment poses a risk to the patient. Those tests and treatments also cost money … some health economists suggest the cost of defensive medicine now exceeds $100 billion a year.

No Simple Solution

On February 5, Rep. Jim Greenwood (R-Pennsylvania) reintroduced medical malpractice reform legislation in the House of Representatives. The Help Efficient, Accessible, Low-Cost, Timely Health Care Act (HEALTH Act, H.R 5) would, among other things, cap non-economic damages in medical malpractice cases at $250,000 and limit punitive damages to the greater of $250,000 or twice economic damages. The measure–virtually identical to a 2002 version that passed the House last September but died in the Senate–had attracted more than 65 cosponsors by February 10.

Opponents of the measure, including Republicans, many Democrats, trial attorneys, and some consumer groups, argue the caps would deny innocent victims or their survivors of compensation they deserve. Even as Senate leaders voiced support for the Act, they acknowledged passing legislation in the Senate would be difficult.

Senator Rick Santorum (R-Pennsylvania) says the new bill could serve as a starting point for debate but “has little chance of passing.” “We’re going to have to be a little more creative,” said Santorum, noting the answer to rising malpractice premiums is not as simple as merely capping damage awards.

Significant reform must be a top priority for the 108th Congress. While there seems to be little consensus among major interest groups on the nature of the malpractice problem, its severity, its solutions, or the proper role of government in fixing the situation, one thing is certain: Consumers are getting short shrift.

Conrad F. Meier is managing editor of Health Care News.