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While tort reform is the primary front in the war waged by the medical profession against skyrocketing liability premiums, curtailing so-called frivolous lawsuits is another tactic that’s gaining ground and garnering support in statehouses and courtrooms nationwide.

“Groundless lawsuits still account for something like 15 percent of the money paid out in settlements or verdicts,” said Dr. Alexander Rosenau, a Pennsylvania trauma doctor and board member of the American College of Emergency Physicians (ACEP). While he pointed to outrageous jury verdicts as the catalyst of today’s medical malpractice crisis, he acknowledged that physicians – and society – pay a price when meritless lawsuits are filed against providers. And the cost is measured in more than dollars.

“Physicians feel a huge personal pressure when a medical liability action is brought against their name. Physicians come from a subset of the population with the personality and training to want to be the best, to do the right thing, to take care of patients,” Rosenau said. “I don’t think the average attorney understands that this is not just a risk of doing business, this is something that affects physicians to their core. We know there are physicians who have committed suicide over lawsuits, who have had depressions and marriages that have suffered.”

Paul Greve echoed that sentiment. As a senior consultant and senior vice president in the Willis Healthcare Practice, Greve monitors state and national malpractice trends and how they affect insurance and risk management. “A huge amount of money is expended for these meritless claims, but more importantly, I’m very concerned about the psychological impact on the physician and other healthcare providers who become the defendant in these claims,” he said. He recalled two physicians peripherally involved in malpractice litigation: both left clinical practice, one to teach and one to conduct research. “In each of these communities, they lost a very good physician,” he said. “This type of thing really takes its toll.”

Greve said one strategy of plaintiff attorneys in medical malpractice cases is to “shotgun,” naming as defendants every physician and other provider whose name is on the patient’s chart. Closer to trial, those who weren’t directly involved with the patient’s care are dismissed. “Nonetheless, that costs money, obviously, to defend, and the psychological impact is significant,” he said.
Meritless lawsuits also change the practice of medicine itself, Greve added. “It affects the way doctors interact with their patients. They react defensively to them and treat them defensively, which has a dramatic economic impact,” he said.
Defensive medicine is a particular concern of the ACEP, according to Roselau. “Physicians truly believe, to some degree, that what we call standard operating procedure in medicine is somewhat due to practicing defensive medicine,” he said, adding that the extra and perhaps unnecessarily steps taken today are so ingrained in the system “that we don’t even realize it at times. It’s true that by doing testing to the nth degree we may find some more disease or another medical condition, but society has to choose just how much testing we do. Sometimes we leave common sense out of it.”

Does Roselau find himself practicing defensive medicine? “I don’t find myself consciously doing it, but I think that, unconsciously, we all do that now and then,” he said. “That one additional test; the one more step that we may not have taken otherwise.”

Patient access to healthcare is yet another cost of meritless claims, Roselau added. “It’s becoming more difficult to have access to subspecialists that we need to practice emergency medicine,” he said. Will a hand surgeon be available when a firecracker explodes before the child could throw it? Will a neurosurgeon be available when an automobile accident results in head trauma? Will a gynecologist rush to the Emergency Department to treat a pregnant woman with unexplained heavy bleeding? “There are fewer and fewer people willing to take on the onus of being that type of specialist and being willing to come into the Emergency Department to treat the patient they’ve never met before and who they won’t have an ongoing relationship with,” he said. “It’s not about the reimbursement. There’s a much greater chance of being sued by a patient who doesn’t know them when the outcome isn’t perfect.”

Then he added, “It’s unhealthy the way society has expectations that exceed reality at times.”

Yet there’s good news, Greve said. “Consumers have realized there’s a link between healthcare access and the malpractice problem. I think that’s what moved many state legislatures to enact tort reform,” he said. In fact, more than 30 states now have some sort of medical malpractice tort reform on the books, including capping jury awards for non-economic damages. More states also are requiring proof from plaintiff attorneys before filing that the case has merit.
Greve said reforms are making a difference, and the numbers prove it. Physician premiums are going down, especially in states with caps, and the number of lawsuits filed is dropping as well. What’s more, companies that insure physicians against malpractice “are even seeing a slight profitability for the first time in a long time,” he said.



February 2008

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