It is no secret to neurosurgeons that we are once again facing a professional liability insurance crisis. Whether it is obstetricians no longer delivering babies or neurosurgeons no longer providing trauma care, the effects of the PLI crisis are being felt across the country. This time around, however, advocates working to end the crisis have created a heightened awareness on the part of the media, public and policymakers with regard to the detrimental effects is the crisis is having on patients’ access to care.
The AANS and CNS have developed a comprehensive strategy for tackling this critical issue, and a campaign to enact legislation that will combat this crisis is well underway. To this end, the Washington Committee has established the special Professional Liability Task Force, chaired by Stewart B. Dunsker, MD, a past president of the AANS. Through this mechanism, neurosurgery will attempt to influence the debate at both the state and federal levels.
States Lead the Way
As is often the case, individual states, rather than the federal government, are better equipped to act quickly to address healthcare issues. This year several states enacted medical liability reforms in an attempt to avert a meltdown in their healthcare systems. Whether or not the courts will uphold these new laws remains to be seen, but passage of the reforms demonstrates the ability of physicians to raise public awareness and get legislative action.
Three states, in particular, merit highlighting: Pennsylvania, Nevada and Mississippi. The key provisions of the new laws in each follow.
Pennsylvania
- Allows malpractice damages to be paid over time
- Sets higher expert witness standards
- Creates a patient safety authority
- Phases out a jury award pool into which doctors must pay
- Establishes a seven-year statute of limitations in most cases
- Requires plaintiffs to file in the county where the alleged malpractice occurred
Nevada
- Sets a $350,000 cap on non-economic damages in most cases and a $50,000 limit on damages for hospitals and physicians treating trauma patients
- Implements expert witness standards
- Holds doctors financially liable only for the damages for which they are responsible
- Allows judgments to be paid over time
Mississippi
- Caps non-economic damages at $500,000 until 2011. The cap then goes to $750,000 until 2017 and $1 million after that.
- Holds physicians responsible only for their portion of the non-economic damages
- Requires lawsuits to be filed in the county where the alleged malpractice occurred and ensures that lawyers notify physicians at least 60 days before a lawsuit is filed
Obviously, none of these laws identically mirrors California’s MICRA (Medical Injury Compensation Reform Act of 1975) — the ultimate legislative prize — but they are nevertheless steps in the right direction. In fact, that Mississippi (described by some as “tort hell”) passed any caps on non-economic damages at all is a significant victory for physicians. More work remains, however, and extensive state-based activity is anticipated in 2003 as numerous state medical societies are gearing up to pursue reforms. Neurosurgeons need to keep abreast of these developments and work with their state societies to help advance reform legislation.
U.S. House Comes Through, but Senate Stumbles
For the fifth time in recent years, the U.S. House of Representatives passed a comprehensive medical liability reform bill known as the HEALTH Act (Help Efficient, Accessible, Low Cost, Timely Health Care). Unfortunately, as has been the case in the past, the bill died in the Senate. Despite the failure of the Congress to send a bill to the president, however, significant strides were made in demonstrating the need for reform. The key provisions of the HEALTH Act as passed by the House, follow.
- Healthcare lawsuits cannn be filed no later than three years after the date of injury (with an exception for minors injured before age 6).
- Damages are allocated in proportion to each party’s degree of fault.
- Non-economic damages are capped at $250,000, unless a state has enacted a different limit in which case the state cap remains in effect.
- Punitive damages are capped at the greater of two times the amount of economic damages or $250,000.
- Periodic payment of future medical expenses, rather than payment in one lump sum, is allowed.
The HEALTH Act passed by a vote of 217 to 203, with 203 Republicans and 14 Democrats voting in favor of the measure. Fifteen Republicans, 187 Democrats and one Independent voted against the bill, and four Republicans and eight Democrats did not vote. To see how your representative voted, go to: https://clerkweb.house.gov/cgi-bin/vote.exe?year=2002&rollnumber=421. Neurosurgeons are encouraged to write thank-you letters urging the legislators who supported the bill to vote the same in 2003, when the bill is reconsidered.
Medical Liability Reform Tops GOP Healthcare Agenda
Immediately after the Congressional elections Nov. 5, Republicans, who now control the House, Senate and the White House, announced that medical liability reform will be one of the GOP’s top healthcare priorities during the 108th Congress. When the House reconvenes in January, it is expected to quickly reintroduce the HEALTH Act.
Quick passage will allow us to turn our attention to the Senate, where there is a lot of work to be done. Even though the GOP now controls the Senate and will put the issue on the front burner, the margin of control is slim, and the 60 votes necessary to end debate and pass the bill are lacking at present. However, given the worsening crisis and the changed political landscape, a new federal medical liability reform law could find its way to the president’s desk before too long.
Katie O. Orrico, JD, is director of the AANS/CNS Washington Office.
| Neurosurgeons Hold Press Conference, Call for Medical Liability Reform Legislation
In September in Philadelphia, the AANS and CNS convened a press conference to highlight the impact that the medical liability crisis is having on patient access to neurosurgical services. James R. Bean, MD, David F. Jimenez, MD, Stephen M. Papadopoulos, MD, and Gregory Przybylski, MD, spoke on behalf of the AANS and CNS. Brian Homes, MD, representing the Pennsylvania Medical Society, and Peter W. Carmel, MD, representing the American Medical Association, also participated in the event. Dr. Jimenez called for federal legislation to address this national crisis and noted organized neurosurgery’s support of HR 4600, the Help Efficient, Accessible, Low cost, Timely Health Care (HEALTH) Act of 2002. “The HEALTH Act is modeled after California’s Medical Injury Compensation Reform Act, which, after nearly three decades, has brought stability to the professional liability insurance market, while at the same time fully compensating injured patients for their legitimate injuries,” he said. “In a similar manner, passage of the HEALTH Act will ensure that patients and doctors nationwide will reap the benefits of this rational approach to solving the liability crisis.” Dr. Papadopoulos unveiled the results of the national professional liability insurance survey conducted by the Council of State Neurosurgical Societies. “The impact that this crisis is having on patients cannot be overstated,” he said. “Many neurosurgeons are no longer performing high-risk neurosurgical procedures in an attempt to lower their professional liability insurance costs and minimize their risk of suit. Based on this survey data, it seems that brain surgeons are no longer performing brain surgery.” For a copy of the survey report, Neurosurgery in a State of Crisis: Report on the State of Professional Liability Insurance Rates and the Impact on Neurosurgeons and their Patients, go to https://www.neurosurgery.org/csns/csnssurveyreport092502.pdf. |
| Neurosurgeons Are Needed to Help the Cause
The AANS and CNS cannot be successful in achieving effective medical liability reforms without the help of neurosurgeons around the country. We need to develop:
Neurosurgeons must become part of the solution. If you are willing to participate in our medical liability reform campaign, contact Katie Orrico in our Washington Office at [email protected] or (202) 628-2072. |