Guest Opinion: Barry L. Gross, Esquire

Bucks County Courier Times

The facts do not support your recent editorial blaming the civil justice system as the sole cause of rising medical malpractice insurance rates. Your call for legislation placing further restrictions on patients’ rights is a simplistic and potentially dangerous approach to a complicated problem.

It is notable that despite the predictions of the doomsayers within the Pennsylvania Medical Society, the trauma centers at Saint Mary Hospital and Abington Hospital continue to operate without interruption. An investigation of a similar situation at Brandywine Hospital in Chester County led The Daily Local News to conclude that “the medical community’s latest statements and actions remind us of the boy crying wolf.” You made a vague reference to a neurosurgeon having to pay $400,000 for medical malpractice insurance. However, your newspaper recently reported that Dr. Thanki, a neurosurgeon at Saint Mary Hospital, was able to obtain medical malpractice insurance at a reasonable rate. Similarly, an orthopedic surgeon at Saint Mary Hospital informed me that his medical malpractice insurance cost him $72,000.

The truth is that the most significant factor affecting malpractice insurance rates is the alarming increase in the occurrence of medical malpractice. Studies by the Harvard School of Public Health and the National Academy of Sciences report that between 44,000 and 98,000 Americans die each year due to medical errors in hospitals. In 1999, it was reported that medical errors were the 8th leading cause of death in the United States. Last year, it was determined that medical errors have become the 5th leading cause of death in the United States. Even using the lowest estimates, more people die each year as a result of medical errors than from motor vehicle accidents, breast cancer or AIDS. I am in possession of a report written by the Chief of Pathology at Jefferson Medical College in Philadelphia stating that 30% to 40% of autopsies at major medical centers reveal important misdiagnoses. In 1999 the Department of Veteran Affairs reported nearly 3,000 medical mistakes occurring in less than two years in this country’s veterans hospitals, resulting in more than 700 deaths. This data actually understates the problem because the studies are limited to hospital settings, and do not take account of the numerous medical errors that occur on an outpatient basis. These studies also do not include the victims of malpractice who live, but suffer permanent disabilities.

It is remarkable that the Courier has failed to report these staggering statistics as the overwhelming cause of rising medical malpractice insurance premiums. It is equally remarkable that your solution to this problem would be to restrict the ability of patients to hold the doctors and hospitals accountable for their negligence. Further limitations upon patient rights will do nothing to reduce the amount of medical malpractice, but will merely shift the cost of medical malpractice away from the responsible parties and onto the victims themselves or government programs. There is no justice in blaming the victims for the high costs associated with medical malpractice.

Economic considerations aside, the most dangerous aspect of restricting patients’ rights is that in Pennsylvania the civil justice system is the only means of consumer protection against medical malpractice. The Pennsylvania Medical Society and the state regulatory agencies do not protect the public from medical neglect or incompetence. Weakening patients’ civil rights may eliminate the only existing deterrence against medical incompetence.

Adding to the problem is an institutionalized conspiracy of silence about medical malpractice. The hospitals and doctors have been successful in obtaining laws which make it impossible for patients and their families to investigate for malpractice without bringing a lawsuit. When hospitals conduct peer reviews to uncover malpractice, the results of these investigations are kept secret. Under a state law, peer review materials are not available to patients and cannot be obtained even in a lawsuit. The malpractice history of individual hospitals and physicians is also kept secret. Based on current information, only 4% of the physicians are responsible for 40% of claims paid for medical malpractice. The identity of those 4% is hidden from the public. This prevents the public from making educated choices about their medical providers and patients unwittingly continue to go to doctors and hospitals with a proven track record of malpractice. Making such information public would allow patients to select medical providers who have exhibited higher standards of care, thus reducing deaths and injury from malpractice and likewise reducing the cost of malpractice insurance. The Pennsylvania Medical Society, and now the Courier, are advocating changes that would further strengthen the conspiracy of silence about medical malpractice by restricting the patients’ rights to use the courts to uncover cases of malpractice.

The Courier’s reporting on this issue has failed to recognize that the current rise in malpractice insurance premiums is closely related to economic cycles that have nothing to do with jury verdicts. When the insurance companies collect premiums, they invest their reserves. Everyone knows that we have experienced a sharp decline in the economy and, over the last year, there has been an unprecedented decline in interest rates. These factors have reduced the investment income for insurance companies, so they are attempting to increase income through premium hikes. This is a temporary situation that will go away as the economy recovers. However, restrictions on patient rights will continue long after the insurance companies have recovered from these economic influences, resulting in a windfall to medical providers and their insurance companies.

Your editorial mentions that two medical malpractice insurance companies left the area, implying that high jury verdicts were responsible. You failed to mention that there are serious questions regarding the manner in which these companies were managed. Last month, the insurance commissioner charged the officers of PHICO with negligence in the management of the insurance company.

The Pennsylvania Medical Society and its political allies have attempted to create the impression that large numbers of doctors are fleeing Pennsylvania. This is not true. The number of physicians practicing in Pennsylvania has risen substantially over the last decade. From 1990 until 2000, the number of doctors in Pennsylvania increased 11%, from 30,451 to 34,565. As of October 2, 2001, there was no decline in physician enrollment in Pennsylvania. This information came from the director of the CAT Fund and was reported in the Philadelphia Inquirer.

The truth is that so-called tort reform never works to lower insurance premiums. The state of Ohio implemented tort reform in the area of medical malpractice, and yet Ohio’s rate of increase in medical malpractice premiums was even higher than in Pennsylvania. On the other hand, Massachusetts has not enacted medical malpractice tort reform, but has seen malpractice insurance premiums increase at a much lower rate than has occurred in Pennsylvania and Ohio. The reason is that Massachusetts has very proactive state Board of Medicine and the country’s most progressive system of physician profiling. In Massachusetts, doctors’ malpractice history is available to the public. The experience of Massachusetts shows that when information is provided so that the public can make educated choices in selecting medical providers, the occurrence of medical malpractice goes down, claims are reduced, and medical malpractice insurance rates are held in check.

A legitimate debate about the expense of medical malpractice insurance must include a discussion of the manner in which the income of doctors and hospitals has been affected by managed care. HMO’s have placed restrictions upon medical care, while making large cuts in the amounts paid to doctors and hospitals. The impact of medical malpractice insurance premiums is disproportionately high because doctors and hospitals have had their income reduced by the reimbursement practices of HMO’s. Almost all of the physicians that I have spoken to believe that the reduction in income caused by managed care and HMO’s is a much bigger problem than the cost of medical malpractice insurance. Additionally, there is a clear relationship between managed care and the occurrence of medical malpractice. Because of the payment practices of the HMO’s, physicians are required to work longer hours, see more patients and perform more surgeries in order to maintain an adequate income level, all of which increase the risk of malpractice.

The notion that there has been an explosion of medical malpractice cases is a political myth. According to the Harvard Study, only 2% of those injured by negligent medical care ever file lawsuits. There has not been a significant increase in medical malpractice jury verdicts. A recent study has shown that insurance companies are paying victims of medical negligence an average of $42,607. A decade earlier, the average pay-out was $39,093. Furthermore, there has not been an explosion of medical malpractice verdicts in Philadelphia. In 1998, the total number of medical malpractice cases that came to verdict was 152. That number dropped to 146 in 1999, and was 104 in 2000. Figures for last year are not yet available, but preliminary reports indicate that the downward trend is continuing.

It is regrettable that the Courier did not see fit to report these facts and allow its readers to make their own judgments rather than advocating a political solution that places patients’ rights and patients’ safety in danger. The current situation is a medical malpractice problem, not a civil justice problem.