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Malpractice crisis driving doctors away

September 05, 2004|by BOB MAGINNIS

Nobody's listening.

That's how Washington County's doctors feel about their plight in the current medical malpractice crisis, according to Dr. John Newby, current president of the Washington County Medical Society.

Facing a 41 percent increase in the amount of their malpractice insurance premiums, Newby said that without some reform of a system that encourages attorneys to file lawsuits like the average person buys lottery tickets, there may be grave consequences.

What might those be? Some doctors might retire early or leave Maryland for other states with a better system for dealing with malpractice claims, Newby said. Or, he said, those who stay might elect to do fewer high-risk surgical procedures, forcing more patients to go to the large city hospitals.

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Other possibilities, Newby said, might include laying off some support personnel to cover the higher cost of insurance, or shutting down the office one additional day per week to trim overhead.

For patients, that would mean longer waits for appointments, more time spent on hold because there are fewer people to answer the phones and additional hours spent waiting in the doctor's office.

As someone who hates to spend time in a waiting room contemplating the possibility that the longer I'm there, the more chance I'll get whatever it is that's going around, that argument gets my attention. It hasn't been an easy one for doctors to get across, however, Newby said.

"Doctors are not trained to be advocates for themselves, but for their patients," Newby said, adding that their reluctance to speak doesn't mean there aren't problems.

"In counties around us, people in high-risk specialties are leaving practices, and there are a percentage of neurosurgeons who are no longer doing aneurysm procedures," he said.

Newby said that if it's a procedure that involves a significant risk, or one that is new, many doctors are going to avoid doing it, forcing patients to leave the area.

"That loss of access to care is going to start snowballing," he said.

To those who believe that this is just a dispute between the doctors and the insurance companies, Newby begged to differ.

Not only are insurance premiums going up, but jury awards are increasing as well, to the point where some verdicts give plaintiffs more than the physician is covered for, putting their homes and other personal assets at risk.

This is happening because patients aren't separating a bad outcome from medical malpractice, Newby said.

"People feel that bad outcome means that the physician has done something wrong," Newby said.

Another problem, Newby said, is what seems to be the "lottery mentality" of some attorneys.

"The feeling seems to be that if you put 10 in and win one big, that covers your cost for the other nine," he said.

So what solutions are doctors supporting?

"We'd like to have binding arbitration of malpractice claims," Newby said.

There's an arbitration panel now, Newby said, but its recommendations aren't binding. And, by participating in the current process, the defense (the doctor) has to expose his or her entire case, he said.

As doctors envision it, the panel would be made up of a physician, an attorney and a member of the public educated in what would constitutes malpractice.

"We welcome the involvement of attorneys and the lay people," he said.

In an interview this past March with a member of the Maryland Trial Lawyers Association, I was told that the problem with such panels is that the good doctors needed wouldn't be available because they want to practice medicine, not serve on review groups.

But, Newby said that the doctors could be drawn from the ranks of those who teach, or from recently retired physicians.

Other reforms proposed by doctors would limit "pain-and-suffering" awards, allow settlements to be paid out over time instead of in lump sums and have the state pay for the cost of any extraordinary judgments, at least until something else is worked out.

This last measure is one that Gov. Robert Ehrlich has been cool to. But, given the fact that other proposals are so controversial - such as one that would penalize whichever side lost a court case after rejecting a proposed settlement - adding some dollars may be necessary to give the state breathing room until a more comprehensive solution can be found.

Back in March when I interviewed three local physicians and the trial lawyers' representative, I was struck by the fact that this was not just a difference of opinion, but something personal. The doctors and the lawyers I spoke to genuinely disliked each other, with physicians viewing malpractice lawyers as "vultures" and the attorneys looking at doctors as a group that won't police its own profession in any meaningful way.

To reach a solution in which medical care and legal relief for true malpractice are both available, the governor will have to craft legislation that allows good doctors to practice medicine without the fear of losing their homes and patients who are truly harmed to receive equitable compensation.

I'll write about this topic again in the weeks to come.

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