Thirty years ago a medical liability crisis swept across the country. Out of that crisis emerged a few states—California, Louisiana, New Mexico, Indiana, and Wisconsin—which enacted tort reform legislation that attacked the root causes of the crisis. A second crisis arose 20 years ago, inspiring more states to enact reforms, but few of these states enacted comprehensive legislation. Because of conflicts with the state constitutions, some state supreme courts have overturned many of the reforms that were enacted.
Medicine is now in the third year of a medical liability crisis more far-reaching than any before. In the last two years in an attempt to prevent meltdown of medical services, several states have passed tort reforms, including Texas, Florida, Ohio, West Virginia, Nevada, and Mississippi, with variable effectiveness. Many states face seemingly insurmountable political and state constitutional barriers to reform.
Neurosurgery faces a war of attrition. Preliminary results from the 2004 survey by the Council of State Neurosurgical Societies, American Association of Neurological Surgeons, and Congress of Neurological Surgeons, indicate that, if professional liability premiums continue rising at the current rate, nearly 73 percent of neurosurgeons will relocate, become salary-based physicians or retire from practice. Fifty-six percent said they were considering cutting or reducing high-risk services such as pediatric cases, and 55 percent said they have altered their treatment decisions and consciously practice defensive medicine. When these survey results are compared with a similar survey performed in 2002, it becomes clear that the crisis has continued to worsen. As the casualties mount, the pressure for action to stop the hemorrhage grows.
This is the most serious peril most neurosurgeons have faced in their careers. All other professional, scientific, or practice problems pale in comparison. Research funding, restricted resident work hours, EMTALA regulations, managed care restrictions, and Medicare fee cuts all pose problems for physicians, but look trivial next to the sinister threat posed by loss of liability coverage or bankruptcy by a massive judgment that exceeds coverage limits. Nothing else so threatens neurosurgeons with forfeiture of their very livelihood, wasting years of preparation and experience, and punching large holes in our nation’s healthcare network. The country’s public protector, its legal system, has become a public menace.
Through Doctors for Medical Liability Reform, DMLR, neurosurgery has joined forces with other high-risk specialties, each suffering its own version of the crisis, to take the story to the public, to expose to public scrutiny the damage done by the crisis, and to build public demand for reform. For the first time, all neurosurgeons must discard the shell of professional isolation and venture into the world of public debate and political action. We must expose ourselves to public scrutiny, refute opposing arguments that deny a crisis, overcome inertia, name the root causes of the crisis-rapidly escalating awards and growing lawsuit frequency-and insist on effective federal medical liability reform, which is both possible and necessary to bring uniformity and rationality to the patchwork state medical liability tort rules nationwide.
Doctors for Medical Liability Reform (DMLR) represents 230,000 specialists, the members of 11 supporting medical specialty organizations, formed for the explicit purpose of promoting the passage of federal medical liability reform, and more specifically, ensuring passage in the U.S. Senate, where filibuster has stopped all action on a comprehensive reform bill since July 2003.
As detailed in the cover story, the DMLR began its public information campaign, Protect Patients Now, in February 2004 with televised 30-minute newsmagazine programs exposing the consequences of the crisis in North Carolina and Washington. More state campaigns will follow. Since public knowledge drives demand and demand drives reform, the story of the actual and growing loss of access to specialty healthcare must be told in the states where it is happening, to focus public attention, overcome passivity, and build active demand for federal legislative action.
The campaign will be lengthy and expensive, but it nevertheless is necessary. It requires the active participation of every neurosurgeon. Each has received an invoice for a personal financial contribution to support the campaign until federal reform is accomplished and the threat to neurosurgery, all medical practice, and the U. S. healthcare system, is eliminated.
The Fall 2003 issue of the Bulletin featured the skyrocketing liability crisis and the urgency for planning an active, innovative response. This Spring 2004 issue reports the bold, always active progress made toward federal medical liability reform. The aim is to give each neurosurgeon the information and inspiration to do his or her part and ensure that the goals of the campaign are achieved.
James R. Bean, MD, is editor of the Bulletin and chair of the AANS/CNS Washington Committee. He is in private practice in Lexington, Ky.