Putting a Face and a Price Tag on the Malpractice Issue for Emergency Medicine Physicians

They usually show up in jeans and a T-shirt, hand over an envelope, and with a little smirk say “I have a little present for the doctor.” So starts the arduous process of beginning a malpractice suit---a process that until very recently has been nameless and faceless, but in reality has implications far more serious than the financial statistics and physician manpower projections that have inundated newspapers and magazines. The fact is that our inability to negotiate an end to the “malpractice war” has been one more body blow to reversing the pessimism that exists among practicing physicians.

As an OB-GYN/dean who employs emergency physicians, I know all the statistics. I know that insurance companies are boosting rates partly to make up for price wars in the 1980s. I know that less than 2% of malpractice claims result in a winning verdict at trial. I know that one in twelve paid claims settles for a million dollars or more compared to one in fifty a decade ago. And I know that in the 2002 election, almost $8 million was contributed in lobbying efforts around malpractice, with the AMA and AHA leading the way on the providers side with 60% going to republicans, and the American Trial Lawyers Association infusing a bolus of money of which 90% went to democrats.

But there is a toll which belies those numbers. At my medical school which employed over 500 physicians and has a large emergency medicine department, we had been able to balance a budget despite a 60% increase in malpractice rates in the past 3 years. And while it is unfair that we have obstetricians and neurosurgeons that have bigger numbers on their malpractice insurance expense lines than their salary lines, that is only the tip of the iceberg. The real tragedy is in contemplating what could have been done with that “excess” money in a University that is proudly recovering. What research gains could have been made if we could have handed that to our excellent basic science chairs? What educational innovations could have been started with a little financial push? How might we have been able to help our faculty develop in a changing environment, if we had not had to hand more money over to a legal-insurance machine that seems to have a voracious and limitless appetite.

There is also a very personal toll. There is a piece of you that gets taken away when you get sued for malpractice. We do not live with a business mindset or a business ethic. It is why the best doctors sometimes are the worst allocators of resources. The best of us give care to each patient at the level we would a family member. And in some respects it’s what patients expect from us. In other words, people want managed care for everyone but themselves and their family. But WE as doctors have to live that paradox. Which is why that subpoena from the guy in the T-shirt is not really “the price of doing business” as the insurance companies might tell us. It is a dagger into the soul that separates the art of being a physician from the business of medicine, it is a factor in deteriorating personal relationships for physicians, and it is a symptom of the hidden curriculum that allows students to be more pessimistic after certain rotations than before they had the opportunity to interact with faculty.

So, what can we do? Having spent some time interacting with leaders on the state level through my role on the governor’s transition team, it is clearly time for a new approach. We need to stop the rhetoric around greedy lawyers and incompetent doctors. We need to tie malpractice reform to true quality improvements among hospitals and physician groups. Just as bond raters comment on the “financial health” of healthcare institutions, we should have impartial “quality raters” of health care institutions with a real commitment from the insurers and the legialature to provide malpractice relief for AAA rated institutions and physician groups. We need to make it easier rather than more difficult to “weed out” and retrain physicians that fall below minimum objective quality standards. And we need to in some way indemnify deans and chief quality officers from the fact that some of the same attornies that rail about physicians not policing themselves, will trip over themselves to file an antitrust claim when a doc is censured. And finally we need to ensure that payors stop talking about and actually implement “pay for performance” programs so that the best practices can be incentivized and encouraged.

Sounds like a difficult agenda. It is. But I for one would be willing to do whatever it takes if I could help prevent a young physicians from having to open up the envelope that says, “you have been sued…….”