- The Washington Times - Saturday, April 29, 2006

On Tuesday, the Senate will vote on S.22, The Medical Care and Access Protection Act of 2006, which addresses the urgent issue of fixing our broken medical liability system. How that vote turns out will determine whether millions of Americans continue to have access to quality medical care, or if excessive litigation and meritless lawsuits force many of our most highly trained doctors to cut back on “high-risk,” lifesaving procedures — or even abandon the practice of medicine.

No reasonable person can say the system we now have is working. Every year, half of all neurosurgeons in the U.S. can expect to be sued. Seventy-six percent of all obstetrician/gynecologists have been sued at least once, 57 percent have been sued twice, and nearly 42 percent have been sued three times or more. About one-third of doctors in my own specialty — orthopaedics — as well as one-third of trauma surgeons, emergency room doctors, and plastic and reconstructive surgeons can expect to be the target of a lawsuit in any given year.

Either we’ve got the worst medical system in the world, or our legal system is out of whack. The facts suggest the latter, as only 1 percent of claims — 1 in every 100 — result in a verdict for the plaintiff.

Defending against one of these meritless lawsuits is still costly, however — as high as $90,000 — and even doctors who have never been sued pay through skyrocketing insurance premiums. Mega-awards and lottery-style verdicts as high as $100 million are driving many insurers to abandon the market because it has become so unprofitable and have caused the rest to raise premiums so high many doctors can’t afford them. As a result, some of our best doctors are retiring early or even changing careers, while others are forced to curtail the riskier aspects of their profession. Unfortunately, it’s just these “risky” treatments and services — emergency room care, brain and spinal surgery, cardiac care, helping women through “problem” pregnancies — that just may save our lives some day.

The problem has already reached crisis proportions in many parts of the country. Hundreds of emergency rooms have had to close their doors. Three out of 4 of those that remain open recently reported they had to divert ambulances due to a shortage of specialists, forcing the drivers to shuttle patients with life-threatening traumas between hospitals in a desperate search for care — which in some cases has come too late.

Obstetrician/gynecologists — a favorite target of personal injury attorneys — have become so scarce in some states women have to drive many hours just to obtain routine prenatal care or deliver their babies. Imagine going into labor when the nearest obstetrician is three, four or five hours away.

All those who provide medical care — doctors, clinics and hospitals — are increasingly forced to practice defensive medicine, ordering costly tests, scans and other treatments they don’t believe are medically necessary simply to protect themselves if they get sued.

If you’re wondering who pays for all this in the end, the answer is you — in higher insurance premiums and through your tax dollars. The U.S. Department of Health and Human Services (HHS) reports the costs of medical liability coverage and defensive medicine increase the amount taxpayers must pay for Medicaid, Medicare and other federal health programs by as much as $56 billion a year.

The situation is rapidly getting worse, too, as medical residents shun specialties most at risk of lawsuits. Sixty-two percent of residents say medical liability is their top concern and will definitely influence what specialty they choose. Already, 1 in 3 OB/GYN residency training slots goes unfilled. In Pennsylvania, where there were 80 orthopaedic vacancies in 2005, only one was filled by a resident trained in-state.

There must be a better way, and there is. The legislation Congress will take up Tuesday is modeled on medical liability reform in Texas that in just two years has pulled that state back from the brink of catastrophe.

Critical, however, are reasonable caps on noneconomic damages, what’s sometimes called “pain and suffering.” This point is sometimes misrepresented by partisans on the other side. So it’s important to underline such caps don’t hinder any patient’s access to the court system and allow for full and complete recovery of all past, present and future economic losses — including “economic equivalents” for homemakers — and full and complete recovery for all medical expenses, including rehabilitation.

Before Texas passed its reform, unbridled lawsuits drove doctors from whole regions: More than two-thirds of Texas counties didn’t have a single licensed obstetrician; half had no pediatrician and one-third couldn’t even convince a family physician to set up shop.

Since reform, however, doctors are flocking back to once medically underserved communities, and Texas is again attracting critically-needed specialists in “high-risk” fields.

We can see the same turn around nationally, if Congress does what’s right Tuesday and passes vitally needed medical legislation to fix our broken medical liability system.

Stuart L. Weinstein, M.D., is chairman of Doctors for Medical Liability Reform.

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