Surgeons begin 'operation malpractice'

November 14, 2004|by BOB MAGINNIS

Dr. Karl Riggle says he's wanted to be a physician ever since he took first aid as a Boy Scout. But the 47-year-old Hagerstown surgeon now finds himself in the unfamiliar realm of politics, as one of the leaders of a local group pushing for changes in the Maryland law governing malpractice insurance.

Riggle and other physicians had earlier threatened to stop doing everything but emergency procedures as of Nov. 15 to protest the state's malpractice laws.

They believed those laws, or lack of same, forced the state to grant Medical Mutual, the physician-run insurance company that covers most of the state's doctors, a 33 percent increase, on average, in its rates. Other specialists' rates will go up by 75 percent or more.

Riggle's own premium will go from $22,386 in 2004 to $74,042 in 2005. According to local doctors, it's not because the doctor-run insurer is trying to rack up record profits, but because in the last four years, the total paid out by Medical Mutual has gone from $47 million to $74 million, a 57 percent increase.


The doctors blame trial lawyers for filing frivolous suits while Kevin McCarthy, a spokesman for the attorneys, told me earlier this year that the blame should go to a medical profession that won't police its own members.

The doctors, who spent years going to school to join a profession in which long hours and unpleasant surprises are a part of the territory, said they feel pushed to the wall by the latest rate increase.

The effort is being led by Riggle and Dr. John Caruso, a neurosurgeon. Riggle says he got involved because, "I'm a guy who doesn't say 'no' too much."

In the spring, when doctors began talking about "going bare" - dropping insurance and allowing the hospitals to assume the liability - Riggle jumped in. As the two tell the story, the idea was opposed by both the board of Washington County Hospital and various health-maintenance organizations, which stipulate in their contracts that doctors will have malpractice coverage.

After that, Riggle became chairman of a task force organized to deal with the insurance issue, even as he was being sued himself. The day after a local jury found in his favor - the suit has since been refiled - Gov. Robert Ehrlich came to Hagerstown to pledge his administration's help with the problem.

That led the doctors to reconsider their plans for a Nov. 15 work slowdown, but Riggle said that it still might happen if there is no progress on the issue.

"Progress," as the doctors define it, would be a special session of the Maryland General Assembly to deal with Ehrlich's plan. That plan would require upfront mediation of all claims, put a "reasonable" cap on attorneys' fees, revise the way economic damages are calculated and put new rules on expert witnesses.

The doctors' own proposals are more elaborate. They would like Maryland to adopt a law similar to California's Medical Injury Compensation Reform Act, known as MICRA.

The proposal, which can be viewed in detail by going to www.saveourdoctors. org, would also change the way in which damages are calculated, allow awards to paid out over time instead of in lump sums and limit attorneys' fees.

The doctors would also like tighter controls on expert witnesses, legal protection for doctors responding in "Good Samaritan" situations and establishment of a health-care court, to evaluate claims before they reach the legal system. The doctors say this system works well in Indiana.

In California, they said, the MICRA law passed in 1975 held down insurance rates. Instead of the national increase of 420 percent over that time, California's rates went up by only 168 percent, they said.

A 2004 Rand Corp. study of the effect of MICRA law appears to back the doctors' position, saying that MICRA limits have trimmed awards. In the sample cases researchers looked at, they fell from $421 million to $295 million. The study's authors explained that MICRA doesn't limit jury verdicts, but judges use it to reduce awards after the trial.

On the other side are those who claim that insurance rates weren't affected as much by MICRA caps as they were by California's Proposition 103. Enacted in 1998, it limited insurance increases in some cases and rolled them back in others.

Why should you care about doctors' insurance woes? Because sooner than you think, they could affect you.

Because the same HMO contracts that prohibit doctors from going without insurance also lock in their fee structure, unlike other businesses, doctors cannot pass along increased costs by upping their rates.

Doctors can work to limit their liability by declining to do some so-called high-risk operations and procedures on children. If your case is a difficult one, or if one of your children is involved, you may end up going to a big-city hospital for the surgery.

This is already happening in Maryland, Caruso said, where a survey of the state's neurosurgeons produced some chilling answers.

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