Why we need medical malpractice reform

A familiar face appeared on the television screen while I was watching Anderson Cooper 360º last week. An obstetrician, who had delivered the babies of a friend of mine and his wife (both physicians), was telling the story of a patient whose uterus had burst during labor -- a medical emergency that can result in death if not handled immediately and properly.

The doctor performed a hysterectomy and, after what sounded like a harrowing experience, both mother and baby were fine. The doctor described how she was so concerned for her patient's well-being that she cancelled her office appointments for several days to spend time at the patient's bedside and monitor her care.

Six months later, the doctor received notice from an attorney requesting the patient's records, and was subsequently slapped with a lawsuit. The doctor now pays nearly $170,000 per year in malpractice premiums -- even though a jury found no negligence.

This may sound like an extreme case but, in fact, it is the norm. In a September survey of more than 5,000 obstetricians/gynecologists conducted by the American College of Obstetricians and Gynecologists' (ACOG), 90 percent of doctors said they had experienced at least one liability claim in their careers with an average of 2.69 per doctor. Sixty-two percent of the claims were for obstetrical care.

That's why in my ob/gyn practice, one out of every five revenue dollars I bring in goes towards paying for my medical liability premium, despite my clean record. As I mentioned in a previous post, in Florida, the state with the highest premiums, ob/gyns pay an average of $195,000 annually, according to a study in the journal OBGYN.

What's more, fear of lawsuits has forced many doctors to limit or give up their practices. The ACOG survey found that 63 percent of ob/gyns report making changes to their practice due to the fear of liability claims or litigation. In addition, 8 percent said they had stopped practicing obstetrics altogether.

And guess what? It's not necessarily the bad doctors who are leaving. If you're a more experienced doctor who's practiced medicine for many years, you might start to wonder how many babies you have to deliver to break even. Is it worth giving up weekends or getting calls in the middle of the night when you can give up obstetrics and reduce your malpractice premiums by 75 percent? (In case you're wondering, if you cut down on your deliveries, semi-retire or switch to part-time, say, if you're a mother with young children, you still pay the same malpractice premiums.)

Increasingly, some younger doctors are giving up obstetrics after realizing that they can reduce their malpractice premiums by $100,000; they can, instead, do controversial procedures like "vaginal rejuvenation" or cosmetic procedures like laser hair removal and make just as much money with less hassle. It's not just the bottom line that is driving these doctors; going through the process of a lawsuit is both time consuming, costly, and emotionally draining. Once this happens, some physicians decide they just can't risk going through another lawsuit.

Ten years after the doctor on CNN was faced with the lawsuit, she still refers to the case as "a knife in her heart." I realize that this has nothing to do with the economics of health care reform, but it is not uncommon for doctors to face emotional distress over dealing with a lawsuit, since many of us still pride ourselves on forging meaningful doctor-patient relationships.

I fully support the idea of doctors being penalized and disciplined when they have been negligent. But you can do everything right and still get sued for a poor outcome.

Moreover, this is not a problem that only affects physicians' paychecks: The medical liability crisis has had a detrimental effect on the way medicine is practiced in this country.

Lawyers whose livelihoods depend on seeing the system continue as is downplay the medical malpractice crisis. They dismiss evidence that doctors have been forced to practice defensive medicine, for example, by ordering more tests and procedures to limit the risk of a lawsuit, thus increasing the nation's health care costs. However, I see it every day. And nowhere is this more obvious in my field than the common practice of delivering a baby via c-section to reduce the risk of a serious complication to mother and/or baby. Every c-section adds two days to a patient's hospital stay at a cost of $3,000 to $4,000 per day.

In the ACOG survey, 29 percent of ob/gyns reported that they perform more c-sections (down from 37 percent in 2006) due to the risk or fear of liability claims. In Connecticut, this has become so common that women are increasingly seeking the care of midwives and even home births to avoid c-sections.

The good news is that after a conspicuous absence from the health care reform debate, both Democrats and Republicans are finally addressing the medical liability crisis. Of course, the two parties disagree when it comes to how to reform medical malpractice. Republicans tend to favor caps on jury awards while President Obama suggested in his speech to Congress that states should seek federal grants to test alternative approaches.

I suspect that the trial lawyer lobby will attempt to thwart these efforts. But medical malpractice reforms need to be included in health care legislation to control costs and ensure that patients receive care based on medical evidence, not the fear of a lawsuit.

Russell Turk, M.D., is an obstetrician and gynecologist in Fairfield County, Connecticut.

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