demystifying Medical Malpractice

deMystifying Medical Malpractice A Patient-Centered look at a Systemic Issue American Medical Student Association – Health Policy Action Committee – 2003 Anne-Laura Cook, Medical Malpractice Coordinator Casey KirkHart, Health Policy Action Committee National Chair America’s #1 health crisis… Do you live in a “red” state? Practicing medicine there might not be as easy as you think…       AMA’s 19 “crisis” states PA, NJ, NY, WVa, CT Astronomical jury awards Out-of-control insurance premiums Physicians unable to practice Patients left without medical care …or is it?       “Crisis” blown way out of proportion? Economic forces at work… Political wrangling What puts the “malpractice” in medical malpractice insurance? Overall quality of medical care A crumbling health care system Let’s meet the players…! Physicians Patients!! Insurers Lawyers Access to care A patient’s journey through the realm of medical malpractice Quality of care Commitment of medical error A Doctor’s Defense Outcome: judgment and awards What’s next for med mal? A patient’s journey through the realm of medical malpractice Access to care • The U.S. Health Care crisis – but WHICH ONE? • Physician exodus and vacuum of services Quality of care Commitment of medical error Wait a second… a health care coverage crisis in the U.S. ?? 43.6 Million For all of 2002 74.7 Million Uninsured US Census Bureau, Health Insurance Coverage, 2002 Families USA, 2003 For some or all of 2002 and 2003 Who are the Uninsured? Employed 50% Unemployed 5% *Out of Labor Force 20% Children 25% Himmelstein & Woolhandler, Tabulations CPS, 1999 * Students>18, Homemakers, Disabled, Early Retirees Unmet Health Needs of the Uninsured A vacuum of medical care…  Nevada – Las Vegas Level 1 trauma center shuts down, opens when surgeons get caps; 10% docs expected to retire/relocate    New Jersey – West VA – PA – 65% hospitals see docs leave due to increased premiums 30-day surgeon walk-out in 2003; rural areas hit hard, communities without Ob care <5% docs, pay 10% total premiums in US; Delaware Co, Chester Co, Bucks Co, NE Philadelphia see docs leave, consider moving; volunteer services threatened by cost of insurance  >15% OBGYNs in FL, NV, NJ, NY, PA, WA, WV, OR and KY have stopped offering OB care. US Dept of Health and Human Services, “Confronting the New Health Care Crisis,” 2002 American College of Obstetricians and Gynecologists, “The Hot States,” 2002 US General Accounting Office, “Implications of Rising Premiums on Access to Health Care,” 2003 But who do you believe ?!? US GAO report tells a different story:      5 “crisis” states vs. 4 non Reduced access specifically to hospitalbased ER on-call surgery, emergency specialty surgery, and deliveries Limited to scattered, often rural areas with other long-standing barriers to care On WIDESPREAD basis, overall access NOT AFFECTED ID other reasons for reduction in services US General Accounting Office, “Implications of…,” 2003 A patient’s journey through the realm of medical malpractice Commitment of medical error Quality of care • The Patient - Physician relationship • Medical Errors • Repeat Offenders • Malpractice corrupts care •Defensive Medicine •Fear the patient Navigating the legal process The Sacred Patient-Doctor Relationship Caring and healing, up the slippery-slope of modern medicine American medicine – the best of times…the worst of times  Physicians continue to have the “most prestigious” occupation: 61% of Americans rate physicians “highly” Patient Satisfaction, however, continues to decline: the % dissatisfied with their doctor’s care doubled from ’97 to ’00 The # of medical student applicants decreased by 6% in 1999, the third straight year of decline   Harris Poll, 2000 Roper Center Polls, 2000 Barzansky, et al., JAMA, 2000 Common Patient Complaints  Too little time for patients  Does not listen  Does not explain well  Shows no sympathy  Does not understand pt or pt’s family  Incompetent Harris Poll, 2000 Roper Center Polls, 2000 Hey, DOC ! Patient is Wrongfully Injured by Physician How do we prevent it? Understand how it happened! IOM - “To Err Is Human” The American health care system is not as safe as you might think     #1 – deaths by medical error #2 – motor vehicle collisions #3 – breast cancer #4 – AIDS (#6 – lack of insurance ~18,000) 44,000 - 98,000 deaths by PREVENTABLE medical errors in hospitals each year $17 – 29 BILLION yearly in additional cost Perhaps 95% errors unreported $60 BILLION yearly result of med mal Institute of Medicine, “To Err is Human: Building a Safer Health System,” Nov 1999 Harvard School of Public Health, from Testimony of Harvey Rosenfield, FTCR, Feb 2003 Jrnl of Health Care Info Management, “A System Approach the Error Reporting,” Vol. 16, No. 1 definition Medical error – failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim   Fragmented “non-system” the whole = LESS THAN the sum of its parts Limited education/attention on prevention  Litigation hinders disclosure  Polypharmacy  No $ incentive to reduce Not a problem of “Bad Apples”… The WHOLE ORCHARD is rotten! Institute of Medicine, “To Err is Human: Building a Safer Health System,” Nov 1999 Preventing Medical Errors Recommendations  Create National Center for Patient Safety   Develop Error Reporting System. Must guarantee confidentiality! Raise performance standards and commitment to safety within professional groups and accreditation boards.  Implement safety standards at the patient delivery level. Repeat offenders – How safe is YOUR doctor ?! Acc to US National Practitioner Data Bank (NPDB)   5.1% docs 54.2% payments Of 35,000 docs since 1990 – with 2 or more – with 5 or more 7.6% disciplined 13% disciplined West Virginia – THIRD worst in US  0.6% US docs 1.7% docs with 5 or more payments  9.3% docs 62.2% payments   150 docs 36.5% payments Of docs with 10 or more payments 14% disciplined – Value: more than $220 Million Public Citizen, “Medical Misdiagnosis in WVa: Challenging the Med Mal Claims…,” Jan 2003 Public Citizen, “Consumer Advocates Fire Back at Med and Insr Industry…,”Jan 2003 How does fear of lawsuits alter patient care? definition Defensive Medicine – the use of costly diagnostic efforts of medical treatments for the sole purpose of avoiding potential litigation  >76%  79%  91% -  74%  51%  41% - - litigation has decr quality care more tests than medically needed noted other docs doing same more specialist referrals than needed more invasive procedures than needed more meds than needed Fear of Litigation study, Harris Interactive, Apr 2002 $$HIGH Costs of Defensive Medicine$$     Every test and treatment poses physical and psychological stress Waste of valuable resources - $24 – 43 BILLION Quality improvements reduce costs by 30% Liability reforms could reduce costs by 5 – 9% save $60 – 180 BILLION without less quality ¢¢ …Or simply Common Sense ¢¢     Comprise only 8% of medical procedures Prevalence and cost measurements not reliable – seen in specific clinical situations, results cannot be generalized across all medicine Provide preventative, high-quality care Culture of Excess / Technologization of Medicine US Dept of Health and Human Services, “Confronting the New Health Care Crisis,” 2002 Quarterly Jrnl of Economics, “Do Doctors Practice Defensive Medicine?” 1996 Congressional Office of Technical Assessment, Report, Jul 1994 US General Accounting Office, “Implications of Rising Premiums on Access to Health Care,” 2003 Fear the patient !!     Thoughts and fears set up a potentially adversarial relationship Each pt a potential plaintiff Each question a possible source of angst “Doctors who worry about being sued probably will be.” Lown, Bernard, MD, “The Lost Art of Healing: Practicing Compassion in Medicine,” 1999 A patient’s journey through the realm of medical malpractice Commitment of medical error • Why do patients sue? •Understanding the law • Starting the Process – When Law and Medicine Collide A Doctor’s Defense Outcome: judgment and awards Why do patients sue?    “Original injury is not enough.” Prime concern: perceived lack of caring 3 reasons for litigation 1) Altruism – protect others 2) Expose the truth 3) Financial restitution (least important)   Lack of communication, dishonesty, pt ignored/neurotic Over 1/3 would have opted out of litigation with explanation, apology “Be plainer with me – let me know thy trespass by its true visage” Bill Shakespeare, “Winter’s Tale” Lown, Bernard, MD, “The Lost Art of Healing; Practicing Compassion in Medicine,” 1999 Vincent, Young, Philips, “Why do people sue doctors?” Lancet, 1994 I object!! ¿Comprendes la Ley? definition Litigation – the engagement of legal action Some describe the US to be a “litigious” society – one that frequently engages in legal interpretations and actions. To others, ability of individuals to exercise their rights under the law. definition Liability – the responsibility taken by a professional for his/her actions or omission of actions and for those of people under his/her employment (eg vicarious liability) definition Tort – a wrongful act or omission by an individual that causes harm to another individual When law and medicine collide – entering the litigation process –   Litigation process a painful, tiresome experience Injuries are SEVERE – 52% anatomic deformity or death – 20% emotional impairment     > 70% against ER docs, surgeons, OBGYNs Only 1.5% harmed by medical Tx actually file suit 8x as many acts as claims for compensation Even in the “litigious” US, chance of a doctor being sued after negligent event is only 1 in 50 Lown, Bernard, MD, “The Lost Art of Healing; Practicing Compassion in Medicine,” 1999 Hyatt, et al, “A study of medical injury and med mal: An overview,” NEJM, 1989 A patient’s journey through the realm of medical malpractice Outcome: judgment and awards A Doctor’s Defense •Trends in Premiums •Crash course in economics •Inside the Insurance industry What’s next for med mal? Doctors on the Defensive  Why do doctors need malpractice insurance anyway? – Protect their patients – Protect other doctors and the health system – Protect themselves  The physician’s experience under the legal microscope – where’s the data?? The ROOT of the problem – PREMIUMS definition Premium – amount a person/group must pay to an insurance co to benefit from their insurance protections  Why are we facing this CRISIS? A) Out-of-control legal system B) Market fluctuations C) Poor financial planning and insurer exit D) All of the above E) None of the above F) Does it really matter that much…? “To cap or not to cap” the $250,000 question…  Growth of premiums SLOWER in states with caps vs. no caps 2001-02: Caps - +10% No caps - +29%  Caps thought to work by: – – – – – Decr frivolous lawsuits Decr Defensive medicine Less health care costs Stable insurance system Incr pt care, satisfaction US Dept of Health and Human Services, “Confronting the New Health Care Crisis,” 2002 US General Accounting Office, “Implications of Rising Premiums on Access to Health Care,” 2003  But… – indeterminate if effects due to tort reform or other factors – Previous “crises” and California show otherwise… Testimony of Harvey Rosenfield, Foundation of Taxpayer and Consumer Rights, to Congress, 2003 US General Accounting Office, “Implications of Rising Premiums on Access to Health Care,” 2003 Crash course in economics definition Soft market – conditions where investments are favorable, increasing profits (high interest rates or rising markets) definition Hard market – condition where investments are unfavorable, decreasing profits (low interest rates or dropping markets) definition Reinsurance – insurance for insurers, to provide coverage in the event of large payments, or low incomes, or both Market does a number on premiums Soft market Hard market Inverse proportion of investment rate and insurance rate  Reinsurer shortage – losses hurt more  Reckless financial planning and industry exit make matters worse  Before current “crisis”: deplete reserves – Soft market – good investments – high profits - lower premiums - increase market share and more competition Price war to the bottom ensues  The “crisis” cometh:  – Hard market – sour investments – low profits – high premiums – insurance cos bottom out – St Paul Companies – in 1985, 20% market share; in 2001, drops med mal coverage, $980M loss  Interestingly…St Paul – tort restrictions “will produce little or no savings to the tort system as it pertains to medical malpractice.” Insurance Information Institute, “Hot Topic and Insurance Issues: Med Mal,” Apr 2003 Wall Street Journal, “Insurers’ price wars contributed to doctors facing souring costs,” Jun 2002 Choice F: Putting premiums in perspective average, doctors spend 1.2% - 5.5% of gross income on malpractice insurance  Depends on specialty – Pediatrics – lowest // OBGYN – highest  On  On average, earn >$230,000 (after expenses)  Compare to 2.3% gross income – professional car upkeep Medical Economics, “More Hours, More Work, No Raise?” Nov 2002 Lown, Bernard, MD, “The Lost Art of Healing: Practicing Compassion in Medicine,” 1999 A patient’s journey through the realm of medical malpractice Outcome: judgment and awards •More legal lingo • Frivolous lawsuits and the costs of defense •Who gets what and how much? What’s next for med mal? • A Look at California MICRA and Prop 103 Show me the Money!! Economic damages – compensation for definition measurable financial losses such as past and future, medical expenses, lost of past and future earnings and wages, loss of use of property, costs of repair or replacement, economic value of domestic services, and loss of employment or business opportunities definition Non-economic damages – compensation for subjective, non-monetary losses such as pain, suffering, inconvenience, emotional distress, loss of companionship or consortium, and loss of enjoyment of life definition Punitive damages – monetary penalties assessed to punish a defendant and deter intentional or reckless behavior in the future. Not awarded to compensate for any loss American Osteopathic Assoc, “Defining the Terms..,” www.everypatientcounts.org, 2003 Award designated Verdict for plaintiff 19% •For each claim filed, ave defense costs $25k •14x as many negligent acts as successful claims •57 – 70% claims result in no payment 81% Court 7% verdict •Only 30% claims settled in pt’s favor (doesn’t necessitate payment) “Litigation lottery” and frivolous law suits? OR Due process? 93% Case 8-13% to trial Claim 1.5% filed Patient injured 92-87% 98.5% Insurance Info Inst, “Hot topic and Insr Issues: Med Mal,” Apr 2003 Hyatt, et al, “A study of medical injury and med mal: an overview,” NEJM, 1989 Ambiguous 1996 Awards 1998 no data 1997 1999 $500K $700K (OBGYN) 2000 $1M (+100%) 2001 Note: JVR Jury Verdict Research $570K $1M (+43%) Claims 175% rise since 1994 Unsystematic data collection; excludes 62% all court cases when no payout; reports verdicts, not settlements USBJSS US Bureau of Justice Statistics Survey $285K CFA Consumer Federation of America $43K ALL med mal verdicts, including ZERO payments DHHS US Dept of Health and Human Services $750K $800K (+6.7%) $1.1M (+43%) $126K $136K (+8%) (recalc) Claims 22% rise 1991-2001 NPDB admitted to poor data handling – data useless 1/03 – NYT - had manipulated data $$ MEGA – bucks $$ fewer claims, bigger awards   NAIC: New claims DOWN 4% 90k in 1995 to 86k in 2000, but… JVR:  Lawyers Weekly USA: 7 of top 20 awards in 2001-02 related to med liability. total: $3 BILLION – 1994-96 34% verdicts > $1M – 1999-00 52% verdicts > $1M – largest award in last 6 years $161 MILLION Public Citizen, “Consumer Advocates Fire Back…for Med Mal Crisis,” Jan 2003 Jury Verdict Research, “Trends in Personal Injury,” 2002 Insurance Info Inst, “Hot topic and Insr Issues: Med Mal,” Apr 2003 From jury to pocketbook  What jury offers is not what patient sees – Awards are highly volatile, large awards are appealed, settlements are made, and awards reduced  Average total payment/claim filed: 1987 - $110K 1999 - $250K  Average $3B per yr from 1991-99 (0.3% national health care costs) – vs. cost of malpractice deaths and injuries $30B/yr (10 times that amount!)  Lawyers expenses take another 30-40% of outcome from patients Physician Insurers Assoc of America, “Health Care Financial Trends,” Apr 2002 Insurance Info Inst, “Hot topic and Insr Issues: Med Mal,” Apr 2003 Institute of Medicine, “To Err is Human: Building a Safer Health System,” Nov 1999 What’s next for med mal? A Look at California The  State Premiums rise at rate of about 1/3 vs. country – Surgeons’ increase: 9% vs. 25% – OBGYNs’ increase: 8.5% vs. 20% – OBGYNs in NV and PA pay DOUBLE U.S.   No physician exodus No lost quality of care CA US Dept of Health and Human Services, “Confronting the New Health Care Crisis,” 2002 Medical Liability Monitor, 2001 National Association of Insurance Commissioners, NAIC Profitability Study, 2000 The WEST is like the REST!  California’s own physicians tell us that: – 43% plan to leave medicine in next 3 yrs, another 12% will reduce time with pts – 75% have become less satisfied in 5 yrs – >25% not chose medicine; >33% would chose medicine, but not California – Low reimbursement, managed care mess, government regulation pose greatest frustration – Lowest annual salary in almost every specialty and overall  CMA: “fewer physicians, longer waits, less prevention, higher costs…” California Medical Assoc, “And then there were none: The Coming Physician Supply Problem,” 2001 Medical Economics, “More Hours, More Work, No Raise?” Nov 2002 MICRA – Medical Injury Compensation Reform Act (1975)  Enacted by special session of CA legislature $250,000 cap on non-econ damages; unlimited for economic damages  3-yr statute of limitations on claims  Periodic payments, not lump sum  Sliding-scale for attorney fees  Eliminate “collateral source rule”  But what does this mean for patients? For doctors? MICRA – Model for Reform      Fair and reasonable limit that provides for patients and protests the system; no “lawsuit lottery” Statute ensures that memories and recollection of events are fresh Payments ensure that money is there for patients’ future expenses Limits enormous attorney fees and frivolous lawsuits No “rule” exposes other sources so that each victim gets his fair share US Dept of Health and Human Services, “Confronting the New Health Care Crisis,” 2002 AMA, “Why are medical liability premiums stable and competitive in California,” 2003 MICRA – A Wolf in Sheep’s Clothing  Cap is inflexible to inflation, income, individual  Periodic payments: – $250k cap in 1975 is worth $70k in 2002 – Caps discriminate against low income victims, and taxpayers pay the bill – Caps depersonalize painful experiences – Allow insurers to invest the victim’s money – Cease to the victim’s family if/when he/she dies – Diminish over time with inflation – Are difficult to amend; burden on victim to change with need Testimony of Harvey Rosenfield, Foundation of Taxpayer and Consumer Rights, to Congress, 2003 MICRA – A Wolf in Sheep’s Clothing  Limits plaintiff, not defense, lawyers’ fees – victims can’t find lawyers, insurers/doctors have mighty ones  Without “rule,” juries reduce awards, shift responsibility from wrongdoer  And, most importantly, economic/legal reforms do nothing to address the root cause of litigation – MEDICAL MALPRACTICE!! Testimony of Harvey Rosenfield, Foundation of Taxpayer and Consumer Rights, to Congress, 2003 Proposition 103 (1988) Insurance Rate Reduction and Reform Act in pursuit of the insurance industry…        Ballot measure passed by California voters Immediate rate relief – at least 20% roll-back for all insurance cos - $69M refunded to doctors Froze rates for 1 yr (lasted 4 yrs) Rate changes applied for and reviewed by state Insurance Commissioner, if too high or too low Consumers’ rights to challenge insurance cos in court or before Dept of Insurance Repealed exemptions from anti-trust laws – free market for insurance, less collusion Public accountability through a democratically elected state Insurance Commissioner Testimony of Harvey Rosenfield, Foundation of Taxpayer and Consumer Rights, to Congress, 2003 Prop 103 – False Promises… Prop 103 13 yrs after MICRA  Weaker than previous insurance regulation  No prohibition to raise rates, only more bureaucracy to navigate  CA Dept of Insurance has NEVER denied a single rate filing  All lines of insurance have received rate increase – only MICRA has kept med liability from rising astronomically  US Dept of Health and Human Services, “Confronting the New Health Care Crisis,” 2002 AMA, “Why are medical liability premiums stable and competitive in California,” 2003 San Diego Union-Tribune, 2002 Physicians PROP 103 Patients!! Insurers MICRA Lawyers But who do you believe ?!? U.S. Premiums Earned VS. CA Premiums Earned Natl Assoc of Insr Commissioners’ Reports on Profitability By Line By State, 1976 - 2001 CA Premiums Earned VS. U.S. Consumer Price Index (Inflation) Foundation for Taxpayer and Consumer Rights Natl Assoc of Insr Commissioners US Dept of Labor, Bureau of Labor Statistics What would comprehensive reform look like? Doctor Discipline Error reduction Physicians PROP 103 Insr Industry Reform Pt safety Patients!! Insurers MICRA Lawyers Thank you! www.amsa.org/hp/medmalpractice.cfm