Malpractice law benefits patients, doctors

By Dr. William Cast

The article “Monitoring malpractice� (April 8) and editorial “Malpractice law works� (April 10) were a timely reminder of the importance of Indiana’s malpractice law. I’d like to address some important points not covered in the article that lie at the heart of a law that is in fact a compromise, a structure under which physicians may risk providing critical and sometimes hazardous services while patients are guaranteed payment for bad results caused by treatment that does not meet the usual standard of care.

The reasons the Indiana Patient Compensation Act was passed are important to understand. In 1975, several insurance companies stopped selling medical liability policies in Indiana, leaving their clients bare of coverage. The Neurosurgery Department at Indiana’s Medical School was closed for a period of time during which no insurance was available to cover its surgeons. Much like the aftermath of Hurricane Katrina and other large-scale disasters that sap the financial risk capacity of insurers, skyrocketing malpractice awards left insurers’ funds inadequate to cover those doctors at highest risk of being sued. Only so much money is available to cover very high losses.

The Indiana legislature held public hearings and determined that a crisis existed. Using the model of Workers’ Compensation under which caps are placed on payments for injuries in return for a guarantee that a fund will be maintained to guarantee payment, a similar social compromise was enacted to protect patients. This act created the Patient Compensation Fund, money from a surcharge on physicians’ insurance premiums used to pay patients injured because a standard of care was not met.

Prior to the act, a growing national trend for doctors was to “go bare,� to be without insurance and forced, if they were to continue in medicine, to hide their assets off-shore or in a spouse’s name. Patients who won court awards in some states were left to chase payment from physicians who could not – or claimed they could not – pay. The Patient Compensation Fund, managed by the state, is a guarantee of payment.

Adequate money can be raised from physicians to finance bad outcomes only as long as those results are caused by a failure to meet the usual standard of care. If patients suffering bad results from all causes are to be paid, then premiums must come from 6 million Hoosier citizens; 10,000 physicians cannot raise enough money and continue a practice that provides all the services that patients must have. Emergency rooms, for example, will receive patients who are simultaneously obese, diabetic, hypertensive, injured and drunk. There will be bad results no matter how good the care – and there will be lawsuits with and without merit. That is our legal system, and it is not compatible with low medical costs.

Three-member panels to review malpractice cases were placed into the law following a compromise between Indiana Trial Lawyers and the Indiana State Medical Association. It is truly a feature of the law that can help or harm either side – the knife that cuts both ways.

Prior to having panels, many lawyers said a “conspiracy of silence� existed; doctors would not testify against other doctors, they said. But panel physicians not only screen charts and patient data for the lawyers, they also give an opinion as to the standard of care. Those same doctors are available to testify in court. In addition, under the law, they are able to give an opinion as to the extent of disability and percent of impairment.

These features benefit lawyers at low cost to the patient and offset the comfort given to physicians, namely that some knowledgeable group will review facts and data and say whether they believe the standard of care was met or not met. A patient is free to go to court no matter which side the opinion of the physician panel favors, and it is rare that a severely injured patient (from any cause) cannot find an attorney.

The costs of malpractice suits are high, not only in time and money but in emotional duress for patients and their doctors. A lawsuit, with or without merit, must be defended at great cost well before a review panel is ever convened. The wounds from even a frivolous lawsuit are lasting, and the elevated costs of so-called defensive medicine are the results of doctor’s paranoia and altered behavior.

While no one knows the total cost of defensive medicine, doctors acknowledge that extra tests, visits, tests, scans and MRIs – some necessary and some perhaps not – result from a need to create a shield of data. As a result, many doctors see days in which the great pleasure and privilege of medical practice is offset entirely by threats of litigation lurking in lack of compliance with laws governing standards for safety, discrimination, toxicity, privacy and, of course, profession.

That Indiana has enacted a law that has fairly addressed the legitimate needs of both patients and physicians, and was in fact the first state in the nation to do so, is witnessed by the number of states that soon followed suit, and importantly by the fact that the brain-drain of physicians leaving Indiana was mitigated by this act. It is not perfect, but Indiana has gained from this law.
Dr. William Cast is a Fort Wayne physician. He wrote this for The Journal Gazette.
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