Massachusetts doctors challenge liability insurance analysis

By Amy Lynn Sorrel

A recent study tracking declining medical liability insurance premiums in Massachusetts fails to tell the whole story, physicians say.

According to the report in the May/June issue of Health Affairs, Massachusetts has the fourth-highest average settlement payments in the nation. But study authors from Suffolk University Law School in Boston found that doctors’ average premiums were lower in 2005 than in 1990, when adjusted for inflation.

The report analyzed data between 1975 and 2005 from the state’s largest insurer, ProMutual Group. It found that although average rates for high-risk specialists — such as ob-gyns, neurosurgeons and some orthopedic surgeons — increased significantly since 1990, those doctors accounted for 4% of state physicians. About a third of the specialists paid less in 2005 than in 1990, the study stated.

Massachusetts Medical Society President Bruce S. Auerbach, MD, said that although premiums are a major factor affecting the medical liability environment, the study ignored other pressures, such as the threat of litigation, defensive medicine costs, rising practice expenses and increased cost of living.

“[The study] is taking premiums out of context, and all you have is an incomplete picture of what’s really going on relative to the malpractice crisis,” Dr. Auerbach said.

Liability impact

Massachusetts is one of the states the American Medical Association has declared to be in crisis because unaffordable insurance costs are causing doctors to discontinue services, retire early or flee the state. The AMA continues to push for a $250,000 federal cap on noneconomic damages.

But lead study author and law professor Marc A. Rodwin, JD, PhD, said the report revealed that doctors’ concerns are unwarranted.

“Whatever the premiums are here [in Massachusetts], they should be lower in about 45 other states,” he said. “Clearly, there is something dramatic happening for high-risk specialties, but it’s not the same for all doctors.”

Study authors suggested that comprehensive liability reforms, such as limiting pain and suffering awards, may not be the answer. Instead, they recommended alternatives that include developing programs to help reduce medical errors and finding ways to address high-risk specialties, for example, through a no-fault compensation system.

Massachusetts does not have a cap on noneconomic damages. But the medical society is advocating for measures aimed at curbing unnecessary litigation and liability costs.

The proposals, introduced in the state Legislature this year, would, among other things, require that medical expert witnesses practice in the same area in which they testify; allow doctors to apologize to patients without such statements being used in court; and require plaintiffs to give defendants six months’ notice before filing a lawsuit.

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