Fall 2004

The Case Against Malpractice

We use the word “crisis” a lot, to describe situations involving the economy, our personal lives and even the occasional asteroid. With so many crises around, why should we pay attention when doctors say that Maryland residents are about to face a crisis in medical care due to the cost of malpractice insurance?

Joseph D. Moser, M.D.
Vice President for Medical Affairs

Here’s why. First, the three insurance companies that offer malpractice policies to physicians in Maryland are applying for rate increases averaging nearly 40 percent. Rate increases for some specialties will be more than 60 percent. While many businesses and professions can raise their fees to cover increased costs, in medical practices third party payers (insurance, Medicare, Medical Assistance) set the fees.

This means physicians in the highest-risk specialties are facing $160,000 for insurance for 2005. Current rates have caused some physicians to close their practices or withdraw from treating high-risk conditions, particularly in Ob/Gyn, neurosurgery, and trauma care.

A lack of doctors means a lack of medical care. That’s where it becomes more than a crisis for physicians. It becomes a crisis for all of us.

The problem is complex and assumptions about this issue have made it even more confusing. Here are a few of the myths about malpractice.

MYTH: Only bad doctors are sued. Good doctors have no cause for concern.

About one in five physicians is sued each year. Few of us believe that a majority of doctors are incompetent, yet over time, a majority of doctors will be sued at least once.

And of course, the total cost of all malpractice suits is a burden to every physician through the cost of malpractice insurance. Malpractice is not only about bad doctors. It affects all doctors.

MYTH: Malpractice suits happen because there is so much malpractice.

Many people think of malpractice as a negligent act by an incompetent doctor. No one will question that a patient injured through negligent care should be compensated or that the medical professional who caused the injury is accountable.

However, complications may occur in any type of care and outcomes are not always good. Every doctor has been in the position of doing his best for his patient and yet not obtaining the result he hoped for. Many suits are based on this type of situation.

Governor Robert L. Ehrlich, Jr., flanked by AAHS President Martin L. Doordan and a group of AAMC physicians, addresses Maryland’s rising malpractice insurance rates at a recent press conference.

MYTH: The overall cost of malpractice insurance is not too high; it just needs to be spread more evenly.

The cost of insurance in specialties at high risk for malpractice suits is over ten times the cost for the lowest risk specialties. One suggestion is to lower the cost of insurance for high-risk specialists by increasing the cost for low-risk specialties. But with no means for those doctors to recover the increase in insurance costs, this plan would only shift the burden to physicians who can least afford high rates. It would temporarily save some specialties by putting others into crisis.

MYTH: There is no crisis; doctors will not leave their practices.

People assume that doctors have too much time and money invested in their training to abandon medicine. However, a doctor faced with critically declining income doesn’t particularly care what she has invested in her career if it can’t meet her family’sneeds. Contrary to some opinions, it is love of practicing medicine, not the investment in training, that has kept most doctors practicing through increasingly difficult times.

But everyone has a threshold beyond which it no longer makes sense to continue on a previously chosen course. Doctors can and do move to states with lower malpractice costs; they can and do close their practices and change their careers. Higher rates will accelerate this trend.

CHOICES

Physicians have been criticized for not adequately controlling poor practices among their colleagues. Certainly, the medical profession must oversee and discipline its practitioners. There are many safeguards in place already, from hospital review committees to state licensing boards with physician members. More can be done, and these efforts should continue to expand. But “good” doctors are being sued for complications or unfortunate outcomes. Elimination of “bad” doctors, by itself, will not solve the malpractice insurance dilemma.

In one way or another, we will all pay for the rising cost of malpractice insurance, through an increased cost of medical care or decrease in its availability. Doctors certainly would welcome an increase in reimbursement, or a state subsidy to pay for increases in insurance rates as has been suggested. However, payers oppose increasing their reimbursement rates, and using tax revenue to subsidize the cost of malpractice insurance will not enjoy public support for very long.

To balance our right to compensation for injury with our need for medical care, we have to control the process by which malpractice suits are filed and conducted. State laws addressing malpractice and other liability situations can be changed to ensure fairness, reduce the number of suits without merit, and set reasonable limits. People injured through the carelessness or incompetence of others have a right to compensation. But we can’t afford to allow the inappropriate use of that right. We must be sure our legislators hear that message before a lack of medical care becomes a crisis for all of us.

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