The doctor is in — for now

Physicians will quit due to high malpractice insurance rate, medical society says

By CATHLEEN F. CROWLEY, Staff writer

Dear Patient, your doctor might be out of business tomorrow.

That’s the message some physicians are giving their clients.

The Medical Society of the State of New York created postcard-size flyers about rising medical liability rates and encouraged physicians to put them in their waiting rooms.

The medical society urges physicians to personally mention the cards to patients and ask them to send the cards to state legislators.

The New York State Trial Lawyers Association calls the campaign outrageous.

“The doctors, through the Medical Society, are providing false information, providing scare tactics and basically saying to their patients, we may not treat you anymore,” said Joseph Awad, president of the trial lawyers group.

The doctors and lawyers strongly disagree about the reason for rising malpractice rates. The medical community says the justice system is broken: Lawyers file frivolous suits and juries award astounding sums.

The lawyers say the doctors can reduce premiums by reducing claims. In other words, do a better job.

Malpractice insurance rates vary based on specialty and region. The highest premiums are paid by neurosurgeons, obstetrician/gynecologists and doctors on Long Island and in New York City.

In 2006, Albany surgeons paid $28,000 for malpractice insurance, 95 percent more than they paid in 2001. A typical Long Island OB/GYN paid $165,000 in 2006.

“What we are trying to say to the patients, and what we are trying to tell the Legislature, is that this is going to morph very quickly from a physician cost problem into a physician access problem,” said Gerry Conway, vice president for legislation for the state Medical Society.

Conway predicts that on June 30, the day malpractice premiums are due, some doctors will close their practices instead of paying.

“I’m not talking a gradual erosion of doctors. … I’m talking about going over the cliff,” he said.

Juries are helping to drive insurance rates higher, the medical society said.

Juries awarded an average of $6 million per case between 1997 and 2003, but the average award grew to $8.1 million from 1999 to 2005, according to the New York Verdict Study. But the median jury award — the point at which half the awards were higher and half lower — was below the average award, increasing from $1 million to $1.3 million in the two overlapping periods, indicating a few big awards had boosted the average higher.

The Medical Liability Mutual Insurance Co., which insures many New York doctors, pays out nearly $1 billion a year in malpractice awards and defense costs, according to the medical society. Of that, $350 million is spent defending cases where no money is ever awarded to the plaintiff.

However, a group of Harvard Medical School doctors studied 1,452 malpractice cases and found that in most cases where money was awarded, the money was deserved.

The average malpractice claim took five years to resolve, according to the study that appeared in the May 11, 2006, issue of The New England Journal of Medicine.

“Our findings point toward two general conclusions,” the article said. “One is that portraits of a malpractice system that is stricken with frivolous litigation are overblown. … A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.”

The study said it was more likely for a case with legitimate medical errors and injury to be uncompensated than an unmerited case to receive a money award.

Stop blaming everyone else, said Awad, the trial lawyer.

“The medical community doesn’t take any leadership at looking at the underlying problem, which is medical errors,” he said.

Awad, who specializes in medical negligence litigation, said each specialty has its own set of three or four error scenarios that occur repeatedly.

Awad cited anesthesiologists who, in the 1980s, paid some of the highest malpractice rates, but reduced their rates by dealing with three recurring scenarios that often led to negligence: juggling multiple anesthetized patients at one time, incorrectly inserting tubes into patients through the esophagus instead of the trachea and doing surgeries on Monday.

He said the doctors reduced the number of patients they treated simultaneously, implemented a method to check a tube insertion and discovered that problems during Monday surgeries were often caused by equipment that hadn’t been cleaned or serviced properly over the weekend.

Today, Awad suggests doctors could prevent errors by typing prescriptions instead of penning handwritten ones that are misread, or requiring an OB/GYN doctor to be present during the mother’s entire labor, instead of swooping in for the birth.

“It’s so easy to solve,” he said.

Conway argued that no other profession undergoes the scrutiny of medical doctors. Every procedure is reviewed and questioned. Doctors must get recertification in the specialties on a regular basis.

“It’s unparalleled in any other human endeavor,” Conway said.

Among the initiatives that the medical society will lobby for in this legislative session are changing the legal standard of proof for malpractice cases from “a preponderance of the evidence” to “clear and convincing”; creating a special medical court to handle malpractice cases; capping non-economic damage awards at $250,000; requiring expert witnesses to be identified before trial; identifying doctors who approve the merit of a case, which allows it to go to trial; protect a doctor’s personal assets from liability claims; and providing a tax credit to defray the cost of liability insurance.

F. Crowley can be reached at 518-454-5348 or by e-mail at
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