N. Tucson Blvd. Suite 9
Tucson, AZ 85716-3450
Phone: (800) 635-1196
Hotline: (800) 419-4777
of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto
Jane M. Orient, M.D., F.A.C.P.
1601 N. Tucson Blvd. Suite 9
Tucson, AZ 85716
April 28, 2004
To: Arizona physicians
Re: Professional liability crisis
About 650 of you were at the Tucson Doubletree for the town hall called by the Arizona Medical Association and the Pima County Medical Society. The sense of the audience was that the meeting didn't answer the urgent question of what we can do now. A lot of our doctors aren't going to be practicing in Arizona by the time the 2006 election comes around.
The problem isn't just ours. As Drs. Scully and Balserak explained so eloquently, patients have a problem too: access to care. (Dr. Thomas Scully is a neurosurgeon and a member of the Board of Trustees of Northwest Hospital, and Dr. James Balserak is Chief of Surgery at Tucson Medical Center.)
I'd like to offer several immediate actions that the Arizona chapter of the Association of American Physicians and Surgeons is supporting, along with some questions and ideas.
- There is only one way to lower premiums immediately: eliminate professional liability coverage as a credentialling requirement, or at least lower the required limits of coverage. Many Texas physicians now carry $100,000/$300,000 policies. Local and state medical societies should urge hospitals and plans to change existing rules. Collective action may be needed.
- AAPS General Counsel will draft some guidance regarding federal antitrust law.
- Doctors need to share ideas and tools with othersCpersonal injury (PI) attorneys do. One method is through the AAPS self-organizing internet forum (aaps.forums.commentary.net). There is also a members-only forum at www.aapsonline.org.
- We must expose hired guns who provide perjured or incompetent testimony. Nominees for the Hall of Shame at www.aapsonline.org are being considered. Call me or send e-mail to [email protected] for information on how to contribute information on worthy candidates. Urge your organizations to act on this problem also.
Here are some questions to consider, say during the month-long seminar mentioned by Dr. Scully:
- What would happenCto plaintiffs, PI lawyers, and doctorsCif professional liability carriers were to fail? MICA's spokesmen say that it is in fine financial shape, despite losses exceeding premiums year after year, but the fact is that no company can survive indefinitely if nobody can afford to purchase its product.
- What constitutional rights do doctors have? We keep hearing about how the Arizona constitution protects the right of plaintiffs and PI lawyers to unlimited damages from torts, i.e. to have a crack at an unlimited lottery jackpot without even paying for a ticket. But what about free speech, freedom to contract (or not to contract), freedom to work (or not to work), and protection against involuntary servitude?
- What exactly has been the experience with professional services agreements that limit liability, say as used by horseback riding schools and others, and how can this be applied to physicians?
Ideas for individual doctors
- Read all insurance contracts. Do the math. Do you have to compromise the quality of care, as by seeing more patients than you can handle, to break even? If so, read the clause on how to terminate the contract. Post observations and questions about the contract on the forum.
- Educate your patients. The most effective educational tool is a bill that they are expected to pay. Bill self-paying patients a surcharge for the lottery ticketCitemize their own share plus the amount shifted to them from Medicare, Tri-Care, AHCCCS, and managed-care beneficiaries as a result of price controls in those plans. Educate yourself in the process.
- Learn how to opt out of Medicare. Show Congress that Medicare rules are intolerableCby refusing to tolerate them. If you opt out, you can still serve Medicare beneficiariesCnone of the Medicare regulations apply, including price controls and impediments to charity. Some patients may abandon you, but at least you'll have time to work at something else. Think about it.
- Protect your assets.
- Learn about self insurance or captive insurance companies.
Ideas for legislation
- Enable an independent entity to set up an error or near-miss reporting system, and thus help find ways to protect against system errors, by protecting the data from discovery. The airline industry and its customers have benefited from thisCwhy can't we?
- Expand Good Samaritan Law protection to all services rendered in an emergency. It is not possible to execute a personal service agreement in such circumstances, yet we don't want physicians to just walk away. One court decision striking down a previous law should not be the final word on this. Gross negligence may be a tortCbut a bad outcome from rendering assistance to a needy person, even if an error is made, should never be a tort.
- Put teeth into the requirement for certifying a case as meritorious before filing a claim, by requiring the PI lawyer who files a noncertified case and loses to pay the defendant's legal costs.
- Repeal price controls on medical services. Insurance reimbursement should never dictate the fee.
- Encourage the development of products that permit patients to buy first-party coverage for bad medical outcomes, similar to flight insurance.
- Consider empowering the state insurance commission to have some oversight over professional liability insurers. Implementing this reform in California may have contributed as much to the moderation of premiums as did the cap on awards.
If we are to have continued availability of decent medical services, we need to restore the rights of physicians. A Code of Hammurabi does protect patients from medical mishapsCbut only by depriving them of medical care. Society has no right to impose indentured servitude on physicians, nor to force them to provide the equivalent of sickness and disability insurance to patients, nor to force them to support the class of PI lawyers.
Physicians must stop tolerating these conditions. Mere amelioration of conditions, with postponement of the crisis, will eventually result in the catastrophic collapse of American medicine.
What do you think?
Jane M. Orient, M.D.
P.S. The Arizona chapter of AAPS paid for this mailing.