MARYLAND MALPRACTICE LIABILITY REFORM: A SURGEON’S PERSPECTIVE The recent withdrawal of another major malpractice liability carrier from Maryland and the dramatic increase in premiums by almost 40% to the thousands of physicians covered by the Medical Mutual Company this year has made the disappearance of affordable medical liability insurance a reality. This is about to precipitate a crisis in care as access to physicians is severely affected. While debate currently revolves around issues such as re-instituting a reasonable limit of awards for non-economic damages, disclosure of collateral sources of compensation, periodic payments, etc., other issues not often discussed impact as importantly upon the availability of physicians and the access to health care in Maryland. The front line providers of health care in the Emergency Departments, Trauma Centers, Operating Rooms and Delivery Rooms in Maryland find themselves subjected to the largest increases in malpractice premiums. They sometimes practice in situations over which they have little control, in the most litiginous circumstances. If they receive fees for their services they are not negotiated but set by the payors and are frequently, arbitrarily reduced. The following scenarios are offered to illustrate other components of and potential solutions to the medical liability crisis not yet discussed in the current debate. SCENARIO 1. A forty-six year old mother of two is found at home unconscious with evidence of significant bleeding from the upper GI tract. She is brought into the Emergency Department by ambulance at 1:00 am and attended to promptly by the Staff Physician. Initial attempts to establish an intravenous route for resuscitative fluids prove unsuccessful and the first 200cc of fluid enter the tissues of the right forearm. An incision to find veins of adequate caliber is needed in the other arm and the patient is prepared for surgery. The On-call surgeon comes in from home, determines that emergency surgery is appropriate and takes the patient to surgery. Within twenty minutes the surgeon opens the stomach and finds that the bleeding is from multiple dilated veins in the stomach secondary to previously undiagnosed biliary cirrhosis. The surgeon asks the OR nurse to see if any other surgeons are present in the Operating Suites to assist him as the majority of the stomach has to be removed to stop the bleeding. Another General surgeon just finishing an operation for a perforated appendix is found and agrees to assist. Four hours later, as the sun begins to rise, the patient is wheeled into the Recovery Room, though still requiring blood and medicines to maintain her blood pressure. Forty-eight hours later the circulation to the right hand and fingers is found to be threatened due to swelling from the infiltrated fluids given in the Emergency Room. The patient is brought back to the Operating Room and multiple incisions are made in the arm and hand to relieve the pressure. The operation is successful in restoring the circulation. Unfortunately, the patient suffers a myocardial infarction that night and dies 36 hours later. Ten weeks later the Emergency Department Physician, Attending Surgeon, Assistant Surgeon and Anesthesiologists are named in a Malpractice suit. PROPOSAL: Any physician, surgeon or assistant surgeon called upon to provide life saving procedures within the confines of a hospital Emergency Department, Operating Room, Delivery Suite etc. upon a patient under emergency circumstances in which there has been no previously established doctor-patient relationship (i.e. “Good Samaritan” circumstance) shall be immune from liability for malpractice for simple negligence regardless of clinical outcome. COMMENTS: Over the past ten years medical staffs in Maryland and across the country have experienced a gradual but persistent reduction in the number of surgeons available and willing to respond to the needs of Emergency patients. In the past year alone community general surgical staffs have shrunk over 5%. Because the care of traumatized patients in eastern Maryland is regionalized, the shortage of qualified surgeons to take care of injured patients has not been felt as acutely as in rural western Maryland and elsewhere. Fewer surgeons agree to take call for Emergency patients citing obligations to take care of their present patients, disruption of their schedules, meager if any compensation and a disproportionate risk of malpractice litigation. While all hospitals with Emergency Departments are obliged by law to treat all patients coming through their doors, that treatment often necessitates the skills of a specialist who, if he/she is not an employee of the hospital, may or may not be available when they are needed. Recently, surgeons have begun to resign their privileges at multiple hospitals in an effort to limit their exposure to Emergency Room patients. This phenomenon further exacerbates the critical shortage of surgeons to answer the call. In response to a similar and growing shortage of surgeons and others available to treat Emergency patients in Florida, the State Legislature has enacted legislation to grant immunity from medical malpractice liability if that care is delivered in a Good-Samaritan circumstance (Florida Statutes 768.13s4c(1)). Currently, similar immunity is granted in Maryland to EMT and other personnel delivering care to patients in the field. SCENARIO 2. A twenty-six year old single mother of two comes to the Emergency Department complaining about abdominal pain that was getting progressively worse. Initial evaluation by the ER physician raises the question of appendicitis. A CT scan shows changes suggestive of acute appendicitis. The ER physician calls the On-call general surgeon. However, because the surgeon does not participate in the Maryland Medical Assistance program another surgeon must be found. Three hours later, when no other surgeon can be found who participates in the program in that hospital, the patient who is clinically stable but uncomfortable, is transferred to another hospital for care. Four hours later, the patient is found to have a ruptured appendix with perforation and infected fluid in the lower abdomen. After a prolonged hospitalization the patient recovers satisfactorily to go home where her wound infection ultimately heals. A malpractice suit is initiated against the hospital and operating surgeon alleging that delay in diagnosis and substandard operative care caused chronic pelvic pain, disfiguring scar, etc. PROPOSAL: All physicians and surgeons providing care to patients under the State of Maryland Medical Assistance program will be immune from civil medical malpractice liability. The state would assume liability for any malpractice resulting from care delivered under this program similar to that described in the Federal Tort Claims Act (FTCA) for health care providers in federally sponsored care programs. COMMENTS: Currently the number of specialty providers participating in the Maryland Medical Assistance program is at a bare minimum. Enrollment in the program is decreasing. While the reasons are undoubtedly multiple, surgeons and other specialists remain fearful of an untoward risk of medical malpractice when caring for these patients. Recent legislation enacted in Texas as part of Malpractice Reform has acknowledged this problem and in an effort to address these concerns and restore the numbers of physicians participating in their program have limited awards for malpractice to $100,000 per occurrence. Whether this will prove to be adequate to make practioners comfortable enough to enroll in the program remains to be seen. Complete immunity as granted to providers in Federal programs would be more likely to succeed. SCENARIO 3. An eighty-three year old man with hypertension is found to have a pulsatile mass in his abdomen. Workup demonstrates an aneurysm of the abdominal aorta 6.5 cm in maximal dimension just below the renal vessels. The patient and his two daughters meet with the vascular surgeon to discuss the situation. They are told that without surgery the aneurysm is likely to rupture in the next 6 to 12 months leading to severe back pain, intraabdomenal bleeding and most probably death. The patient and family discuss the situation. The patient declares that he has “lived a good, long life” states he understands the implications of his decision and thanks the vascular surgeon for his time. Eight weeks later, at 1:00am the vascular surgeon gets a call from the ER that the patient is there unconscious, the abdomen is tender and distended, the blood pressure very low and the urine output is minimal if at all. The son who was not present in the office and a daughter now want “everything possible” done to save their father’s life. The patient is operated upon within 35 minutes of coming to the ER by the vascular surgeon. The operation goes well technically though it is difficult because of the bleeding found and the size and location of the aneurysm. A perioperative myocardial infarction is diagnosed, renal failure necessitates dialysis and after five weeks of intensive care the family consents to the withdrawal of supportive measures. The patient expires three hours later. PROPOSAL: Patients who receive appropriate counseling in the office regarding the nature, severity and treatment options concerning an imminent and likely life-threatening surgical condition and decide against the recommended surgical procedure shall be required to sign a statement to that effect. This document will have the power of an Advanced Directive and will become a part of the patient’s medical record. By securing this, the counseling surgeon will not be held liable for medical malpractice regardless of the subsequent clinical course of the patient or outcome undertaken to correct the problem under emergency conditions. COMMENTS: Every day in many of America’s hospitals patients, their families and physicians are confronted with desperate situations. Most of these situations are unavoidable, outcomes are not predictable and no efforts are spared in the hope of reversing a correctable situation. However, there are times, such as the case described above, when a clinical course and its outcome is so predictable that patients and families must seize the single opportunity to correct a situation before it literally becomes a exercise in futility. In every major hospital each year hundreds of thousands of dollars are spent in futile exercises in the Operating Room because of the fear of medical malpractice. There are times when nothing can be done to change the ultimate course of events. That is the time to provide comfort to the patient and emotional support to the family. The remaining three proposals are offered without accompanying clinical scenarios as the inequities and/or inefficiencies they address are not unique to the practice of surgery. For the most part they are self-explanatory: PROPOSAL: Parties electing to have claims heard by a multidisciplinary Arbitration Panel or claims assigned to the Panel by Judiciary review will have expedited and binding adjudication. The amount of the award, if any, and compensation to Plaintiff’s Counsel, will be determined by the Panel according to a preset formula. PROPOSAL: Compensation to Plaintiff’s lawyers will be proportional to the time spent to prepare the case and present it in court. A “fair and equitable” hourly rate will reflect community standards. PROPOSAL: Full disclosure to Juries regarding collateral sources of compensation for medical expenses, other benefits, etc., will be required. Awards for non-economic damages may not exceed $250,000. All economic awards to be distributed on a periodic basis. The above proposals may be viewed by some as excessive, even unwarranted. Reference can be made to prior “crises” in the past when medical liability insurance rate increases were attributed to economic cycles without apparent consequences. There was a rate increase experienced in the mid 1970s apparently mild enough not to require radical changes. The next “cyclic” rate change in the 1980s was certainly felt by Marylanders on the eastern shore when obstetricians found malpractice premiums too expensive and temporarily curtailed deliveries. That broad increase was offset by health care providers employing physician expanders to increase productivity, increasing work hours, and most importantly by increasing fees-for-service. However, over the past ten years or so the demographics and economics of health care have changed dramatically. Fees to surgeons and obstetricians have been markedly reduced- most are less than they were ten years ago. Payors are poised to reduce them again and providers are seemingly powerless to prevent it. Far fewer medical students are interested in becoming surgeons citing excessive years of training, an unreasonable lifestyle, too much stress, and too little reimbursement. Those students entering surgery are becoming sub specialists. Less than five percent of graduating medical students will practice general surgery. Surgeons currently in practice find overhead costs, employee salaries, office rents, etc. escalating at a time while their workload is approaching unsafe levels. Practitioners able to retire are doing so. And now medical malpractice liability insurance premiums are skyrocketing causing more surgeons to examine the economic feasibility of remaining in practice. All of these factors converging at this time have created the greatest threat to American Health Care in decades. We are about to face a critical shortage of experienced surgeons and obstetricians. An impending crisis in access to vital health care services looms. And though medical malpractice abuse represents only a single element of our multifaceted, dysfunctional health care system, it appears to be the only one that can be addressed immediately at the state level. The experiences in California, Florida and Texas have demonstrated that this can be done effectively while maintaining quality health care. The self interest of a few individuals must not be allowed to derail medical liability reform and jeopardize the health care of all the citizens of Maryland. Scott E. Maizel, M.D., FACS President, Maryland Chapter American College of Surgeons 9101 Franklin Square Drive, #110 Baltimore, MD 21237 (410) 574-5720