Malpractice Solution’ Only Lawyers Can Love The potential solution to the state’s escalating medical malpractice crisis recently described in the Sun is yet another well-crafted deception by the trail lawyers in Maryland, some of them leading lawmakers in Annapolis (Malpractice Solution is proposed to governor, June 16, 2004). It is not surprising that this scheme is endorsed by the trial lawyers, as it would perpetuate the current system that already gives 40 percent to 60 percent of patients’ awards to the lawyers. It would do nothing to change the attitude of some patients that a health care encounter is a potential “lottery,” and, most important it would do nothing to promote better healthcare for the citizens of Maryland by identifying the 3 percent to 5 percent of physicians who do practice substandard medicine. In the short time left to avert, a widespread crisis of access to care for Marylanders, all parties interested in meaningful answers to this crisis should reject such blatantly self-serving solutions. The malpractice liability crisis is real and it is here today. Physicians are leaving practice now because of unaffordable malpractice premiums. The proposed solution just throws good taxpayers’ money after bad –and right into the trail lawyers’ projects. Originally published on the Baltimore Sun on June 25, 2004 Scott E. Maizel, MD, FACS President, Maryland Chapter American College of Surgeons 9101 Franklin Square Drive, #110 Baltimore, MD 21237 (410) 574-5720 THE MEDICAL MALPRACTICE CRISIS: FACTS AND FICTION On January 21, 2004 thousands of doctors, nurses, other health care professionals and concerned citizens assembled in Lawyers Mall in Annapolis to “Rally for Change” to raise awareness regarding the escalating crisis surrounding Medical Malpractice in Maryland. Down the street, in a conference room, patients, family members and friends gave testimony regarding their terrible experiences as a result of medical errors. The coverage given to the events that day was for the most part “balanced and objective”. The attention of the media, and therefore the public, has moved on. The Lawyers Mall has been cleared of any debris. The Teachers are scheduled to come in this week. The proceedings of January 21, 2004 provided many important facts, and dispelled many myths, regarding the Medical Malpractice situation in Maryland. A partial review is essential: FACT - There is a malpractice “crisis” in Maryland and it is victimizing not only patients but also the doctors, nurses and hospitals that take care of them. To deny there is a crisis, as thousands of people find it necessary to leave their homes, their patients, their operating rooms and hospitals, travel hundreds of miles in over sixty busses, to stand in the freezing cold to plead their case, is unconscionable. The Rally gave clear testimony to the breadth and severity of this problem throughout this state. The people at the Rally represent only a fraction of those health care professionals and hospitals affected by the malpractice crisis. FACT - Patients may be hurt as a result of medical errors- some are avoidable, some not. Patients and families who are injured should be heard and compensated fairly and appropriately. Doctors and hospitals agree! At any time we too may become be a patient, we also have families. To believe that doctors, hospitals and everyone in healthcare do not want injured parties to be justly compensated if injured is FICTION. The current system, however, does not ensure this. As it currently stands the patient’s lawyers first take their expenses off the top of the award reducing the amount and then the remainder of the award is divided between the lawyer and the injured. The result is that the injured party usually ends up with only about 40% of the award. The amount of the award given by juries is based upon misrepresentation and inaccurate numbers and frequently serves the interest of the lawyers more than the patient. The injured party is again victimized by the current system. FICTION - Doctors protect each other and do not care about “bad medicine”. This is, of course, not true. At any moment a doctor or his family member may need care, need an operation or require hospitalization. All of us agree that medical errors must be reduced in every way possible. Hospitals and all providers are constantly looking for ways to eliminate mistakes from their care of patients. What is true is that doctors have not invested enough time to “police” themselves. Though care by doctors in hospitals is continuously reviewed by committees and other doctors, it is the Board of Physicians that is ultimately responsible for licensing practitioners. The process has been slow and unfocused. Physicians are reluctant to participate in it not just because of the time involved and the discomfort we all feel in criticizing a colleague as a “Monday morning quarterback.” The greatest deterrent comes from the fear of being sued by the errant doctor in question. To defend oneself in this type of situation is not covered by malpractice or any other type of insurance. As it currently stands, the risks of loss of time and money are real. Despite this, professional organizations, such as the Maryland Chapter of The American College of Surgeons, are working with the new Board of Physicians to provide experienced specialists practicing in our community to participate more actively in the review process. Effective malpractice reform legislation must clearly remove the liability to doctors doing this essential job on behalf of the public. This will help achieve everyone’s goal of removing the 2%-5% of physicians who practice bad medicine repeatedly. FICTION - Only patients and their families are victims of the Malpractice crisis. When skyrocketing jury awards result in ever increasing malpractice premiums charged to doctors and hospitals everyone is affected. Because of the cost of insurance many obstetricians have stopped delivering babies with more to follow this year. Patients who are pregnant must try to find a new doctor, many will not be able to so before their due date. Emergency Room doctors, many who have never delivered babies, may have to do so. Fewer general surgeons, neurosurgeons and orthopedic surgeons are willing or able to respond to calls from the Emergency Departments of hospitals. In response to rising insurance costs they are leaving the state, limiting call to reduce exposure to these situations or stop doing complex surgeries completely. In the final analysis, when physicians and other healthcare givers, who have devoted their life to helping people are forced to give up their calling, they also become victims of the malpractice crisis. These people cannot be replaced in five or ten years, if ever. FACT - The debate now resides within the Committee Rooms of our elected representatives. Their work on the behalf of all the citizens of Maryland is at a critical juncture. The health care of all people in this state is clearly jeopardized by the current malpractice crisis. It is real and it does affect all of us- including lawmakers. This is the time for selfless introspection and action so that a meaningful bill addressing the multiple components of this crisis can emerge from this session for the Governor to sign. Such a bill will be a source of great pride and better healthcare for all of us. Scott E. Maizel, MD, FACS President, Maryland Chapter American College of Surgeons 9101 Franklin Square Drive, #110 Baltimore, MD 21237 (410) 574-5720