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Commonwealth’s Threats Create More Hostile Environment

Philadelphia -- 1/7/03--The current “crisis” in medical liability is a man-made disaster in slow motion that was started in 1975 by the politicians. We understand why physicians may want to consider leaving the state and practicing elsewhere. That’s because we understand our oath to “do no harm.” Perhaps the politicians should do the same.

The December 20 threat letter to physicians — or those physicians not prudent enough to have left Pennsylvania already — gives a clear indication of the Commonwealth’s view of physicians, but an inaccurate view of the law.

A physician does not “abandon” his patients when he is killed in a car crash, struck down by a heart attack, or kidnapped and held hostage — or when he is forbidden by law to see patients.

If a physician’s “malpractice” insurance lapses, then Pennsylvania law forbids him to practice medicine. Unlike other medical professionals (such as chiropractors and podiatrists), who are only required to carry insurance to the extent that they can afford it, there is NO limit on what physicians are required to pay. There are limits, however, on what they are permitted to charge.

The Oath of Hippocrates makes no requirement that physicians must work without compensation, much less that they must subsidize their practices. However, the Oath does require physicians to refrain from doing harm: and continuing to practice in an environment that makes it impossible to provide good care is a violation of that Oath.

“Malpractice” insurance may have started as a method for physicians to fund compensation to patients who suffered harm due to medical error or negligence. It has become a cash cow for lawyers; a shield against liability for hospitals and HMOs; and a ticket to a lottery for awards far exceeding actual damages.

Does liability insurance protect physicians? That is increasingly doubtful. Perhaps it just serves as a magnet to greedy lawyers who want a quick settlement from a deep pocket. Physicians are starting to do their math. The average cost of defending a lawsuit is $25,000. If a physician loses, there is a limit to how much of his income a creditor can garnish, and his retirement account, home, and certain other assets are protected. But his malpractice premium, which may actually exceed the amount a creditor could realistically collect even if the physician loses a case, is a given, year after year.

Does this insurance protect patients? Not very well. First, they have to go to court and win. If they win, a huge proportion of the payment goes to their lawyer. If the portion of the medical fee that now goes to malpractice insurers were kept by patients and applied to insurance against death, disability, or medical costs resulting from a bad medical outcome — rather like the flight insurance you can buy before boarding an airplane — injured patients would be much better off.

Would patients get worse medical care if doctors weren’t working overtime to meet their overhead, while still living in terror of having all the fruits of their hard labor seized in a malpractice judgment? Maybe doctors living in a a reasonable and just legal climate could pay attention to the Oath of Hippocrates — prescribing for the benefit of their patients according to the best of their ability and judgment — instead of worrying about what a paid “expert” might allege is a deviation from the “Standard of Care.” Costs might come down too, as “defensive medicine” diminished.

The Commonwealth is indeed having a crisis. You can demand that physicians put a second mortgage on their home and deplete their retirement accounts to make a premium payment — or else give up their chosen profession for good. What is affordable should be a subject for discussion: say 10% of the practice’s gross revenue?

But what will physicians do next year if they go into debt this year?

And what will their patients do when physicians are unavailable, whether it’s now or next year?

It is morally right and ethical for physicians to stop participating in this system NOW. The Commonwealth has had plenty of time, but has done nothing to solve the problem.

Patients who find themselves with a medical need that cannot be met thanks to the laws of the Commonwealth should put the responsibility where it belongs – with the politicians.

Immediate actions that would mitigate the problem:

  • Repeal laws that require malpractice insurance as a condition of licensure.
  • Immediately reduce the minimum liability insurance required to $500,000
  • Forbid hospitals to exclude physicians from the staff solely because they cannot afford malpractice premiums.
Long-term reforms to consider:
  • Limits on non-economic damages;
  • The use of alternative dispute resolution, with a higher threshold of proof required if patients decide to sue after going through the ADR process;
  • Sanctions for perjured testimony by expert witnesses;
  • Encouragement of first-party bad-outcomes insurance purchased by patients;
  • Protection for whistleblowers that expose bad practices.