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Letters to the Editor 12/11

December 11, 2004

What patients face if malpractice crisis isn't solved



To the editor:

Anyone in business will tell you that the only winners in litigation are the attorneys. And if litigation is so inefficient, then why is it the gold standard of rendering justice in the medical world? Who stands to gain?

Most doctors are in private practices with no deep-pocketed corporate employer to buffer the raw demands of five- and six-figure malpractice insurance premiums. But the problem is deeper than something just a few more bucks can fix.

Our medical litigation system is deeply flawed; the interests of the trial attorneys and the financial well-being of the insurance companies take precedence. The injured patients, the supposed focus of all this fuss, get the leftovers.

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By Jan. 15, some doctors will have paid their premiums. For them it's the money that lets the doors stay open a few more months. Others, however, will refuse (or be unable) to pay and will be forced out of business. They and their practices will hemorrhage, but to what benefit and to what harm?

But there is a broad middle ground where many physicians will equivocate, stall and protest as much as possible.

That means your doctor's office may stop participating in your insurance plan because of the inflexible fee schedules or limit their practices without shutting down completely.

For example, some obstetricians have already stopped delivering babies in favor of just performing gynecologic surgery.

Radiologists may read x-rays but not mammograms. Pathologists could read slides but not pap smears. Neurosurgeons may operate on tumors but not aneurysms. General surgeons may operate on emergency-room patients but not on trauma patients. Family doctors will be forced to avoid nursing home residents. Cardiologists will quit doing cardiac catheterizations.

This middle ground is an insidious and slippery slope already started down, much messier and less obvious than the options of simply paying or not paying the premium. This is a middle ground of attrition with no new doctors to replace those who retire or move out of state.

For example, in Hagerstown in January 2004 there were seven vascular surgeons who would operate on a ruptured abdominal aortic aneurysm, a catastrophic diagnosis in which every minute is critical, but in January 2005 there will be only three. Preventable deaths will occur; this unhappy conclusion cannot be avoided.

There will be other nasty surprises: extra drives out of town, rescheduled visits, out-of-network costs, and more confusing fine print in your insurance brochure. It's the problem that could be dealt with but is passed on to someone "with greater expertise," which is code for "My limited policy forbids my participation in your risky diagnosis." It's the extra tests you go through to protect your doctor. It's the risky transport in bad weather to the university center.

What to do for you, the citizen, who has no idea that fully competent doctors have already started transferring pediatric cases out of town? (Three out of eight local surgeons do this right now.) On the one hand we have the interests of the very few patients who are injured through true negligence, while on the other hand we have an enormous number of well-cared-for patients with good outcomes. But some patients have poor outcomes, not through negligence but rather through the relentless effects of disease or severe injury.

Juries naturally sympathize with these unfortunate souls. The problem, of course, is when the burden of this award system is carried on the backs of doctors who are innocent of any negligence. This is a justice system's finest hour? An attorney who represents a patient with a poor outcome having nothing to do with negligent care is not a crusading hero for the little guy. This is the system Mike Miller, our Senate President, champions; he sees no need for legitimate and serious reform.

And what changes are so outrageous that they cannot even be contemplated by Miller? A medical arbitration panel to determine up front whether a case has merit or not? This concept is not unique; it is the logic behind a grand jury and the workers compensation boards. How about a court attuned to health-care issues, one that adjudicates based on science rather than emotion? In other words, what is so seditious about truth and fact? Another improvement would be to ensure that so-called expert witnesses are truly expert and accountable for their testimony.

What about caps? Trial attorneys ask what price can possibly be put on a lost life or on pain and suffering. But when a doctor saves a life or alleviates suffering, very definite fixed-rate reimbursements materialize.

Then there is the sham of moral outrage put on by the lawyers. For when the lottery hits, the piety evaporates and the patient is relieved of much of the award.

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