To Tort Or Not To Tort...

Thinking of becoming a neurosurgeon on Long Island? Then be sure to have $300,000 on hand because that is how much you will be paying for medical liability insurance. And that is only for one year. According to the Medical Society of the State of New York (MSSNY), neurosurgeons have seen a 72-80 percent increase in their premiums in a five year span, from 2003 to 2008. If not for political action by Governor Patterson and the New York State Legislature the costs would have been much greater. In both of the past two legislative sessions, Governor Patterson, alongside the New York State Legislature, has enacted legislation that prevented and will prevent increases for the 2008-09 and 2009-10 policy years. Members of MSSNY see these “freezes” as only a temporary lid on a boiling pot.

“Nassau and Suffolk have the highest cost of insurance instate,” Moe Auster, Council for the Division of Governmental Affairs for MSSNY, explained. Ob-GYN doctors pay over $170,000 in the Bronx, Brooklyn, Queens, and Staten Island. This affects the number of physicians in those areas according to Auster. “I do not have the exact numbers, but Ob-GYN doctors look to somewhere else to practice. It is just too expensive,” he said.

Auster is not alone in this assumption. “It deters doctors from coming to New York,” Dr. Martin Karpeh, a General Surgeon at Beth Israel Medical Center in New York City, said. “Same thing in Pennsylvania. They look to go down South or to the Mid-West.”

The New York Public Interest Research Group (NYPIRG) has found the situation to be different in the past. In 2004, NYPIRG claimed that New York State had the second highest number of doctors per capita in the nation. Ob-GYN’s were ranked fourth in the nation at the time. According to NYPIRG, New York also saw a 16.4 percent increase in the number of practicing physicians from 1995 to 2003. Do those numbers mean that malpractice insurance isn’t driving some physicians away?

In a nationwide poll done by the Physicians Foundation in late 2008, half of those doctors surveyed said they would strongly consider leaving medicine if they were given an alternative. 10 percent of those responding said they planned to seek a job outside of the medical field in the next one to three years. As far as the number of those that have already left, the American Medical Association said that it does not have the exact data to show that just yet.

This trend will not only lead to a lack of physicians to care for patients, but will prove to be a waste of taxpayer money. A doctor can take 10 to 12 years to school and costs a lot of money to train. The number of residents in training has increased steadily over the years and was at approximately 108,000 in 2008. The cost for that year, according to the Medicare Payment Advisory Committee, was approximately $9 billion. If doctors call it quits after a few years of service, the public will not see the investment payoff.

The cost of insurance is not the only problem, though. The legal system has its affects on doctors, too. “We have a civil justice system in New York that is dysfunctional,” Auster said. “It pays cases that there was no injury. It is that unpredictability that drives many cases to settlements.” Only a third of all medical malpractice suits result in payment, but the payments can be overwhelming.

Since 2002, the average payout from a medical liability suit has increased from under $385,000 to over $515,000 in 2008, according to MSSNY. Kaiser State Health Facts found that in 2007 New York had the highest number of paid medical liability claims in the country at 1,528. This was almost 70 percent more than California at 924 and doubles that of Florida and Pennsylvania at 783 and 767 respectively.

While two thirds of these medical malpractice suits do not lead to payments, the amount it costs to defend these cases is no small sum. The Medical Liability Mutual Insurance Company has spent over $725 million in the past ten years alone defending physicians and hospitals in cases where payments were never made to the plaintiff.

The major cost that many say is the result of tort is defensive medicine. The Lewin Group recently did a study concluding that $36 billion could be saved over the next five years by reducing defensive medicine costs. A more recent study, by the Massachusetts Medical Society, showed just how significant defensive medicine costs are when it indicated that $1.4 billion is spent annually in the state of Massachusetts alone for defensive medicine.

“We were able to use clinical judgment in the past. Now we have to do more for patients even when we know we don’t have to. There is a lot of fear in doctors in the way they practice,” Dr. Karpeh said. “Physicians do more to protect themselves. Additional testing, just covering all bases. It is very little to do with healthcare and more for protection.”

President Obama has shown concern in regards to tort reform and has pointed to the Mayo Clinic and the Cleveland Clinic as models to use when trying to attack tort. Dr. Karpeh highlighted those two examples as well when discussing ways to reform malpractice lawsuits. “We are looking for a system that can be used nationwide. Critics say those areas [Mayo Clinic and Cleveland Clinic] are too homogenous, but they are good to look at and get some ideas from.”

Many are looking to alternatives within the current system; simple reforms that could have a tremendous affect. “We want to provide predictability in the courtroom,” Auster explained. He touched upon Medical Expert Witness Reform. Currently in the State of New York a medical witness’ identity is shielded. No other state in the country has this rule. MSSNY argues that the identity should be announced prior to the cases and the expert should be practicing in the same or similar field as the physician who the suit is against. Over twenty states have enacted such reforms where meaningful requirements are placed on the qualifications of the expert witnesses. Health Affairs has concluded that the tightening and reform of rules regarding tort have been extremely effective when trying to contain the medical liability insurance costs.

Auster sees a very bright future for New York; a future that may come sooner than later. “Governor Patterson has been very supportive of doing something with reform. He has worked with us on key negotiations. During the next legislative session we should see something getting done for New York.”