A CASE OF NAIVE OPTIMISM? On April 12, 2004 in a frenzy of activity, back hall negotiating and last minute compromising, lawmakers closed the latest session of the Maryland General Assembly. For many citizens concerned about the diminishing access to health care resulting from the crisis in medical malpractice liability abuse, the session, which opened with a flurry of optimism, ended in dismay. On January 21, 2004 as the session opened, thousands of physicians, nurses, community leaders and hospital representatives rallied in Annapolis in the bitter cold. Now, ninety days later, with nothing produced by the General Assembly to address the crisis, doctors, their patients, hospitals and many patients fear that access to care, especially for the acutely ill or pregnant patient, will be further compromised and lives jeopardized. On January 21st the message of all speakers was the same - the disappearance of affordable medical malpractice liability insurance was forcing many physicians to move to other states, limit services, or leave practice prematurely. Donald Palmisano, MD, President of the American Medical Association described the situation in neighboring states of Pennsylvania and West Virginia where the malpractice situation is so bad already that those states are designated as “ IN CRISIS” on the national list tabulated by the AMA. He described other states’ experiences and recounted California’s malpractice reform legislation, enacted over twenty-five years earlier. Those measures remain effective today. They hold down astronomical liability premiums and enable physicians to continue to practice while still preserving a patient’s right to be heard in court for possible injury and to be fairly compensated. Many of us present that day at the Rally were aware that a few months earlier, in a hotel in downtown Baltimore, the Trial Lawyers had amassed hundreds of thousands of dollars to fight reform in the session to come. Our hope was that concern for the health care of all Marylanders would motivate lawmakers enough to overcome any lobbying efforts by the Trial Lawyers. A coalition of health care, hospital, community leaders and concerned citizens was formed and ably led by Steven Larsen, former Maryland Insurance Commissioner. The Alliance to Preserve Access (APA) presented the objective data that documented the events that have precipitated the malpractice crisis in Maryland. Proposals by the APA were very much similar to those proven effective for decades in California. As hours of testimony by members of the APA were given, the strategy of the Trial Lawyers became clear. Scores of “interested citizens” were recruited from the streets and paid by the hour to pack the committee rooms and “voice their concern” when prompted. Some of them, however, missed their cue- they were sleeping or reading the newspaper. Other patients, family members or “concerned individuals” were “encouraged’ to come to Annapolis to give testimony, some “compensated” for their time or provided transportation. Alternative, creative legislation was proposed by lawmakers, many of whom are Plaintiffs attorneys after the Session ends. The “Rate Compression” proposal sought to raise liability insurance rates for almost three quarters of Maryland’s physicians while attempting to compel insurance carriers to reduce the rates charged to surgeons and obstetricians who are at the greatest risk of being forced out of practice. While this required the lawmakers to acknowledge the existence of the malpractice liability crisis, it did not apparently, inspire them to address the root causes of the situation. Skyrocketing jury awards and out of court settlements have tripled in the last five years and caused insurance premiums charged to doctors and hospitals to escalate beyond affordability. As the drama continued in Annapolis, the Medical Protective Liability Company, the oldest company in the country and one of only three remaining in Maryland, notified Maryland’s doctors of its request to the Maryland Insurance Commissioner to raise premiums for doctors here another 67%. The remaining two carriers have also announced their intentions to again raise doctor’s rate by over 25%. At the same time, the Ohio Hospital Insurance Company notified the twenty hospitals in Maryland it insures that the company is leaving the state. Many of those hospitals have still not been able to find new insurance. Now, as physicians face many hard choices about whether they will be able to remain in practice in Maryland, state lawmakers are leaving Annapolis- some with a smile on their face having taught the naive physicians of Maryland a lesson about politics. Scores of them will return to their law practices. Some hospitals continue to scramble to find malpractice insurance. All of them will spend more money on premiums with less to spend on nurses, equipment and maintenance. Emergency room waits will increase- fewer surgeons to respond to calls. Some babies will be delivered by ER doctors or perhaps in Taxicabs. The long-term consequences of the General Assembly’s failure to act in the interest of all Marylanders are sobering. Doctors will leave practice. Already very few new ones are coming to Maryland because of the crisis. Some are discussing practicing without insurance at all. Doctors and patients will be even more frustrated with the health care system than they are today. Patients will be harmed. Some will die. The only good to come from this session’s shortsighted inactivity will be the hastened realization that the current malpractice liability system does not address the needs of patients, health care providers, hospitals or the public-only the Trial Attorneys. It does not identify the 2-5% of physicians who truly practice bad medicine and should be removed from patient care. It does not fairly compensate injured parties as 40-60% of awards go to the attorneys. It allows complex medical issues to be decided by individuals who are often totally confused by testimony, forcing them to respond emotionally to the “show” presented during a jury trial. And it allows many patients to believe that a health care encounter is a chance at a lottery. All of us who care for patients are understandably dismayed and concerned about the future of healthcare for our patients and family members. The time is long overdue to replace the current medical malpractice liability jury system with one similar to that of virtually all other countries. Discussions in many states and in Washington revolve around the establishment of a “Medical Court” to adjudicate questions of medical malpractice. It would use special Judges who have particular medical expertise , medical experts would be enlisted by the Court, awards would be uniformly assigned by the Court, and patients would be more rapidly and fairly compensated for their injuries. Many highly regarded lawmakers and others have written about and proposed such systems (e.g., see The Common Good at www.cgood.org). I hope that my belief in these essential reforms will not prove to be another case of naive optimism. All of us have just about run out of time! Scott E. Maizel, MD, FACS President, Maryland Chapter American College of Surgeons 9101 Franklin Square Drive, #110 Baltimore, MD 21237 (410) 574-5720