A Medical Economics special investigation: Behind the med-mal crisis
Partisan sniping and Band-aid solutions haven't worked. Perhaps it's time we tried a new approach. Our three-month, six-part, no-axe-to-grind investigation into the causes of the malpractice crisis looks at some that may work.
Six years into the latest malpractice insurance crisis, and doctors' sense of frustration and outrage hasn't moderated a bit. If anything, it's ratcheted up a notch or two, especially in states like Illinois, one of 20 on the AMA's worst-hit list.
"In Will County, we're absolutely dying," says internist Abhinav Singla, who practices in Joliet. "We've had several ob/gyns leave or retire, and our neurosurgery coverage is such that patients with head trauma, aneurysm, or stroke have to be airlifted to Peoria."
Singla—who sits on the board of the Will-Grundy County Medical Society—thinks that "meaningful tort reform" will help to stabilize rates and halt the physician exodus. In the lead up to November, he and his colleagues worked hard to elect GOP state candidates sympathetic to their goals.
Illinois doctors, of course, aren't alone in this fight.
Nationally, physicians believe overwhelmingly that the liability system is broken and needs to be fixed, preferably through federal legislation modeled after California's Medical Injury Compensation Reform Act (MICRA), enacted in 1975. The centerpiece of that law is a $250,000 cap on noneconomic damages—which limits compensation for pain and suffering. (Twenty-two states now cap noneconomic damages, although only a handful have adopted the strict MICRA limit. For a breakdown of states.)
Opponents of tort reform—plaintiffs' attorneys, consumer groups, moderate and liberal Democrats—say it won't work because it doesn't get to the root of the problem. The real problem, they insist, isn't only a broken liability system but the insurance "underwriting cycle"—the periodic fluctuation in premiums that reflects the strategic decisions and fortunes of companies doing business in the professional liability market.
To reduce this fluctuation, the trial bar and consumer groups like Public Citizen and the Consumer Federation of America have called for wide-ranging insurance reforms—coupled with strict measures to reduce medical errors and weed out repeat and flagrant physician offenders.
Two sides, two different world views. The polarized debate over medical malpractice has gone on this way for years, with the high-octane rhetoric that fuels both sides getting stronger all the time.
The moment has come, we believe, for everyone to pause, take a deep breath, and look afresh at both the problem and its proposed solutions. To this end, we spoke to proponents on both sides of the malpractice divide, as well as to academic experts with no discernable axe to grind. What we discovered surprised us:
First, although losses from claims appear to be the biggest driver of higher rates, "multiple factors have contributed" to these increases, including the industry's underwriting cycle, as the nonpartisan Government Accountability Office reported to Congress in 2003. Other studies support the GAO's analysis.
Second, because the problem we face is complex, the solution must be as well. "Band-Aid solutions, such as a sole focus on tort reform, have not worked in the past, and they won't work now," concludes a recent report on medical malpractice by The Council of State Governments, a state service group headquartered in Lexington, KY.
And third, whatever fixes we end up making, our goal shouldn't be limited to lowering malpractice insurance rates, however urgent and significant that is. We must also help our flawed medical liability system effectively and fairly meet its other aims—compensating injured patients, deterring poor quality medical care, and punishing persistent wrongdoers.
Wayne J. Guglielmo, Senior Editor, is the author of all articles in this special package on the malpractice crisis. He had research help from Fact Checker Barbara Halenar