My Turn


The Malpractice Crisis: Fight or Flight?

I have lived and worked in southeast Pennsylvania my entire life, but I just left my Pennsylvania-based anesthesiology group for a practice in Delaware. Together with many physicians, I am fleeing the state's skyrocketing malpractice premiums and stagnating reimbursements.

Pennsylvania is just one of 12 states in "malpractice crisis" mode, according to the AMA. But we can fix the problem. Here are four things we need to do immediately:

  • Support tort reform. The US House of Representatives' proposal to put a $250,000 cap on malpractice awards for pain and suffering (HR 4600) is a good idea. In California, where tort reform has existed for more than 25 years, OB/GYNs pay about $20,000 for medical liability insurance; colleagues in crisis states can pay more than $150,000, according to AMA.

I also support a proposal, which surfaced last year in Congress, that would enable plaintiffs' attorneys to take their percentage out of the first $5 million only; any award over and above this amount would go directly to the plaintiff.

  • Make the loser pay. With no disincentive for filing malpractice lawsuits, some plaintiffs' attorneys file multiple lawsuits to increase the odds that more will 'stick.' This not only increases premiums but also forces physicians to pay out of pocket for legal representation. Although insurers assign attorneys to their covered physicians, it is often in the insurer's best interest to settle a claim rather than take it to trial, even when the claim is groundless. A "loser-pays" policy, like the one practiced in Britain, would let physicians hire their own attorneys without paying out of pocket for baseless lawsuits.
  • Institute peer review. The governor of Pennsylvania is considering forming a panel of independent physicians that would review malpractice suits for merit. If the panel determines a suit to be unjustified, the claim would not go to trial. This is a great idea, provided the panelists are qualified and truly independent.
  • Kill the CAT fund. By law, Pennsylvania physicians must contribute to the state Medical Professional Liability Catastrophic Loss (CAT) Fund, which was established in the 1980s to settle what were then a small handful of high-reward malpractice cases. The intent was to limit the individual physicians' malpractice premiums. Unfortunately, unscrupulous plaintiffs' attorneys saw the CAT fund as a deep pocket, which is what it became. In some years, physicians have had to pay up to 100 percent of their standard malpractice premiums into the CAT fund on top of their regular premiums.

To make things worse, reimbursements are stagnating. Our anesthesia group received only one hard-fought increase in six years even though the insurers raised consumer premiums every year. Currently, the Blues control more than 70 percent of non-Medicare insurers in southeast Pennsylvania, yet physicians have no collective bargaining power because we are not permitted to control more than 30 percent of the 'lives' in our market. Similar insurance monopolies are on the horizon in other states.

If I had stayed with my Pennsylvania practice, my salary would have decreased and my malpractice premium would have doubled in 2003. Given this gloomy picture, I have regretfully joined the physician exodus from Pennsylvania. But that doesn't mean I will stop fighting for my colleagues, my patients or myself.