demystifying Medical Malpractice

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					    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                    Quality of care

  journey
through the
               Commitment of
  realm of     medical error
  medical
malpractice                      A Doctor’s
                                 Defense


                Outcome:
                judgment and
                awards
                                What’s next for
                                med mal?
               Access to care
 A patient’s
  journey      • The U.S. Health
through the       Care crisis –
               but WHICH ONE?
  realm of     • Physician exodus
  medical        and vacuum of
                    services
malpractice
                                    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
                      For some or all of 2002 and 2003



           Uninsured
US Census Bureau, Health Insurance Coverage, 2002
Families USA, 2003
              Who are the Uninsured?
                          Employed
                            50%




                                                              Unemployed
                                                                 5%



                                                      *Out of Labor Force
                                                              20%
                                                   * Students>18, Homemakers,
              Children
                                                      Disabled, Early Retirees
                25%


Himmelstein & Woolhandler, Tabulations CPS, 1999
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 –       65% hospitals see docs leave
                        due to increased premiums
                       West VA –        30-day surgeon walk-out in 2003;
                        rural areas hit hard, communities without Ob care
                       PA –   <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 hospital-
    based 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
                               Quality of care
 A patient’s                   • The Patient - Physician
  journey                            relationship

through the                    • Medical Errors
                               • Repeat Offenders
  realm of
                               • Malpractice corrupts
  medical                               care

malpractice                       •Defensive Medicine
                                  •Fear the patient
               Commitment of
               medical error

                               Navigating the
                               legal process
The Sacred Patient-Doctor
      Relationship




  Caring and healing, up the
    slippery-slope of modern
              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
                              Hey,
      patients                DOC
     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
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
                        Medical error – failure of a planned action
       definition
                        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                7.6% disciplined
                               – with 5 or more                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
                               – Value: more than $220 Million
                             150 docs       36.5% payments
                             Of docs with 10 or more payments
                                  14% disciplined
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?
                         Defensive Medicine – the use of costly
        definition
                         diagnostic efforts of medical treatments for the
                         sole purpose of avoiding potential litigation
    >76%                - litigation has decr quality care
    79%             -   more tests than medically
                         needed
    91% -               noted other docs doing same
    74% -               more specialist referrals than
                         needed
    51%             -   more invasive procedures than
                         needed
    41%             -   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
               Commitment of
 A patient’s   medical error
  journey      • Why do patients sue?
               •Understanding the law
through the
               • Starting the Process –
  realm of          When Law and
                   Medicine Collide
  medical
malpractice
                                          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
¿Comprendes la Ley?
                  I object!!



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 Doctor’s
 A patient’s                    Defense
  journey                     •Trends in Premiums
through the                   •Crash course in economics
  realm of                    •Inside the Insurance
                                      industry
  medical
malpractice

               Outcome:
               judgment and
               awards
                                  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
             Soft market – conditions where investments are
definition
             favorable, increasing profits (high interest rates or
             rising markets)



             Hard market – condition where investments are
definition
             unfavorable, decreasing profits (low interest rates or
             dropping markets)



             Reinsurance – insurance for insurers, to provide
definition
             coverage in the event of large payments, or low
             incomes, or both
        Market does a number
            on premiums


Soft market
                   Inverse proportion
                    of investment rate
                    and insurance rate
                   Reinsurer shortage
Hard market
                    – losses hurt more
    Reckless financial planning and
   industry exit make matters worse
   Before             current “crisis”:
       – Soft market – good investments – high profits - lower
         premiums - increase market share and more competition
   Price war to the bottom ensues -                                      deplete reserves
   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
 On  average, doctors spend 1.2% - 5.5%
  of gross income on malpractice insurance
 Depends on specialty
    – Pediatrics – lowest // OBGYN – highest
 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
                Outcome:
 A patient’s    judgment and
  journey       awards
               •More legal lingo
through the
               • Frivolous lawsuits and
  realm of       the costs of defense

  medical      •Who gets what and
                     how much?
malpractice
                                          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
                      Non-economic damages – compensation for
      definition
                      subjective, non-monetary losses such as pain,
                      suffering, inconvenience, emotional distress, loss of
                      companionship or consortium, and loss of enjoyment
                      of life

                      Punitive damages – monetary penalties
      definition
                      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
                                                               •For each claim filed, ave
   Award
                                                               defense costs $25k
   designated
                                                               •14x as many negligent
                         Verdict
                                                               acts as successful claims
                         for          19%
                         plaintiff                             •57 – 70% claims result in
                                                               no payment
                                                               •Only 30% claims settled in
                                            Court
                                                    7%         pt’s favor (doesn’t
                   81%                      verdict            necessitate payment)
  “Litigation
                                                             Case
  lottery” and                       93%                     to trial
                                                                      8-13%
  frivolous law
  suits?                                                                 Claim
                                                                               1.5%
                                            92-87%                       filed
  OR
                                                                                 Patient
  Due process?                                         98.5%                     injured
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          1998      1999      2000       2001      Note:
                        no data
Awards                  1997


JVR             $570K             $500K     $1M
                                            (+100%)
                                                       Claims 175% rise since 1994
                                                       Unsystematic data collection;
Jury Verdict                                           excludes 62% all court cases
Research
                                  $700K     $1M        when no payout; reports
                                  (OBGYN)   (+43%)     verdicts, not settlements

USBJSS          $285K
US Bureau of
Justice
Statistics
Survey

CFA                                         $43K       ALL med mal verdicts, including
                                                       ZERO payments
Consumer
Federation of
America

DHHS                    $750K     $800K
                                  (+6.7%)
                                            $1.1M
                                            (+43%)
                                                                   Claims 22% rise
                                                                   1991-2001
US Dept of                                                         NPDB admitted to
Health and                                  $126K      $136K       poor data handling
Human                                       (recalc)   (+8%)       – data useless
Services                                                           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:
    – 1994-96
      34% verdicts > $1M
    – 1999-00
      52% verdicts > $1M
    – largest award in last 6 years
      $161 MILLION
   Lawyers Weekly USA:
    7 of top 20 awards in
    2001-02 related to med
    liability. total: $3 BILLION
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%                                          U.S.
         – OBGYNs’ increase:
           8.5% vs. 20%
         – OBGYNs in NV and
           PA pay DOUBLE
       No physician                                           CA
        exodus
       No lost quality of
        care
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
       – $250k cap in 1975 is worth
         $70k in 2002
       – Caps discriminate against low
         income victims, and taxpayers
         pay the bill
       – Caps depersonalize painful
         experiences
      Periodic payments:
       – 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              Physicians
reduction                           PROP 103
Pt safety                           Insr Industry
                                    Reform

Patients!!                              Insurers



 MICRA
                    Lawyers
         Thank you!

www.amsa.org/hp/medmalpractice.cfm

				
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