The following is a digest of the Statement of James R. Bean, MD, to the U.S. House of Representatives Energy and Commerce Subcommittee on Health. Dr. Bean spoke on March 24 as a representative of Doctors for Medical Liability Reform, of which the AANS is a coalition member. Click here for the full text of his speech.
Thank you for giving me this opportunity to address you on the critical issue of patient access to medical care. Access to effective medical care depends on a number of factors, but one that’s too often neglected is the barrier to access created by a malfunctioning medical liability system.
I think we can safely say that there is near universal agreement among physicians, patients, policy experts, opinion leaders, and policymakers on both sides of the aisle that our current medical liability system is broken and does not best serve the needs of patients or physicians.
It is also widely recognized that we will never be able to control costs if we don’t do something about the constantly overhanging fear of lawsuits that drives physicians and hospitals to increasingly practice defensive medicine.
According to Elliot Fisher of the Dartmouth Institute for Health Policy, the overuse of imaging services driven by medical liability fears was associated with an increase in total Medicare spending of more than $15 billion between 2000 and 2003. Updated figures for the findings of a 2003 HHS report on the overall costs of defensive medicine put it at an astounding $170 billion per year.
Lawsuit abuse has gotten so out-of-control that about one-third of orthopedists, obstetricians, trauma surgeons, emergency room doctors and plastic surgeons can expect to be sued in any given year. Practicing neurosurgeons can expect to be sued even more often—every two years, on average.
Most of these cases are meritless: Data for 2006 show that some 71 percent of cases are dropped or dismissed, and only 1 percent of cases result in a verdict for the plaintiff. Nevertheless, the cost is staggering, with even those cases that result in no payment to the plaintiff costing an average of $25,000 to defend against. Meanwhile, the average jury award escalated from about $347,000 in 1997 to $637,000 in 2006.
The effect on patient access to care and the physician population has been so severe that many doctors have been forced to retire early, move out of those states where the crisis is most acute, and cut back on the kinds of life-saving and life-enhancing medical procedures that expose them to greater risk of lawsuit abuse.
While the immediate shortages of physician care caused by the liability crisis are severe, the outlook for the future is even more troubling. Fears of exposure to lawsuit abuse are causing medical students and residents to avoid high-risk specialties and more litigious states.
As rates began to slow their rapid climb and level off in 2006, some were tempted to say that the crisis had passed. In fact, while rates have declined somewhat, they remain at or near historically high levels. According to the Medical Liability Monitor for 2008, more than 50 percent of rates did not change between 2007 and 2008. Some seven percent of premiums increased. While the remaining 43 percent of rates decreased, most of those decreases were small—less than 10 percent. This is after premium increases over 100 percent a year in some states without comprehensive medical liability reforms in place.
For the years 2000 to 2008:
In other words, the modest improvement in rates looks more like a temporary “market correction” rather than a reversal of ongoing trends.
The continuing crisis persists despite a clear record of successful reform in some states. Perhaps the most dramatic—because its condition was so dire before reforms were enacted—is Texas.
In 2003, voters passed Proposition 12, a constitutional amendment locking in the limits on noneconomic damages passed earlier by the legislature. The first effect is that so many doctors have come flooding back into the state that its biggest problem became a backlog in the state’s ability to license them.
Since medical liability reform, the six largest insurers have cut their rates, with Texas Medical Liability Trust clocking a full 31.3 percent decrease, and many other private firms have entered the market. Seventy-six counties have experienced a net gain in emergency physicians since the passage of medical liability reforms in 2003, including 39 medically underserved counties and 30 counties that are partially medically underserved.
We strongly believe that comprehensive reforms of the kind passed in Texas should be applied nationwide. At the same time, we understand the political realities of the current Congress and believe that other reform measures may help to ameliorate the current crisis in access to care and should be considered.
Among these is an “early disclosure” or “early offer” model, such as that contained in the Baucus Report. The early-offer process would allow defendants to make a financial offer covering the claimant’s economic damages and attorneys’ fees. If the offer were accepted, furtherlegal action would be foreclosed. If the early offer were rejected, the claimant’s burden of proof at any subsequent trial would be increased. Savings to the system come from the elimination of noneconomic damages and the lower attorney’s fees that result from the speedier resolution of the case.
In a report prepared for the Department of Health and Human Services, an analysis of cases between 1988 and 2002 found that an early offers system would reduce claim costs by an average of approximately $556,000 per claim and by more than $1 million per claim for severe injuries.
The Baucus Report also called for the consideration of specialized health courts. As in so many other proposals, health courts carry a certain promise if the details are done right. If the court’s findings are not binding and further appeals are not foreclosed, it will be critical that—as with early offers—the claimant’s burden of proof at any subsequent trial would be increased. Otherwise, such courts will just add one more venue in which doctors can be sued, and will do little to improve the current situation.
The American Recovery and Reinvestment Act of 2009 contained $1.1 billion in funding to coordinate comparative clinical-effectiveness research. Clearly, such research may have the potential to yield useful information. An ideal outcome for doctors who practice “evidence-based medicine” would be immunity from liability lawsuits or, at a minimum, a greater increase in the burden of proof for the plaintiff.
President Obama endorsed just such an approach in the New England Journal of Medicine. Then-candidate Obama stated, “I will also support legislation dictating that if you practice care in line with your medical societies’ recommendations, you cannot be sued.”
We strongly support the president’s announced position here, and look forward to its implementation as policy. At the same time, we believe that such guidelines should not be interpreted as a “one-size-fits-all” solution that implies negligence has occurred anytime a healthcare provider uses his or her independent judgment and expertise to offer treatments outside those boundaries.
Lastly, we strongly support legislation designed to protect healthcare professionals from being held liable when they volunteer their services to the victims of a declared disaster or national emergency.
In conclusion, allow me to simply restate what we all know: The problem will not go away unless Congress takes effective action, and until it does, patient access to care will continue to be threatened by a broken medical liability system.
Our president and this Congress are dedicated to reforming our healthcare system. No other action we undertake as a nation can be so vital. But we know as well that no overall reform of our healthcare delivery system can be effective if the heart of the system-the physicians who care for patients-are constantly under siege and being driven from practice by an abusive system.
Nor will the future of reform be very bright if our best students, as we have seen, are increasingly becoming discouraged from taking up the arduous calling of medicine.
Access to quality care must come first in overall healthcare reform. That is what it is all about, after all. And ensuring patient access to care means acting now to fix our critically ill medical liability system.