Tort reform debate best served by truth

A message to all physicians from AMA President Donald J. Palmisano, MD.

By Donald J. Palmisano, MDis a general and vascular surgeon in private practice in New Orleans. He was AMA president during 2003-04. Posted March 15, 2004.

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I have talked a lot lately about myths, misrepresentation, facts and accountability in the medical liability reform debate. And I've talked about how I believe that we who favor reform are holding the trump card -- the truth.

We've demonstrated that caps on noneconomic damages work -- such as MICRA, which for more than a quarter century has stabilized insurance rates in California.

We've debunked the myth that insurance companies' stock market losses are what drives skyrocketing medical liability premiums.

And we've exploded the claim that aggressive litigation makes medical care safer by punishing physicians when errors occur.

These truths -- and more -- can be found in the document "Medical Liability Reform -- Now!" available in pdf on the AMA's Web site (link).

In last month's column, I addressed the issue of accountability for those lawyers who hope to strike it rich by filing frivolous suits and intimidating doctors.

A Roman cleric in the second century, Tertullian, wrote that "Truth engenders hatred of truth. As soon as it appears, it is the enemy."

That's how it appeared when my e-mail box filled up with replies from some trial lawyers after last month's column. Many were angry, a couple were unprintable and some offered a civil debate on this issue.

Here are a few excerpts:

"Your article [and you] are full of crap. [Y]ou want to restrict the right of ordinary people to seek compensation for medical injuries. You mean merely to incite the passions of an already overpaid profession which is angry because they have to be accountable."

Just to be clear, the AMA does not oppose compensating an injured patient for medical expenses and lost wages. If there's been a wrong, we want it made right.

And we also want accountability for all -- for attorneys and physicians -- and that includes those who give false testimony using junk science to perpetuate a meritless claim that should not have been brought in the first place.

Our quest is to maintain access for patients in their hour of need. The current system is destroying access.

Another e-mail: "Stop being a pawn for the abusive insurance industry."

Medical liability insurance companies are a convenient scapegoat, but they are required by law to make conservative investments. They typically place about 80% of their investments in the bond market -- not the stock market. According to A.M. Best Co., the investment yields of medical liability insurers have been stable and positive for the last five years.

If you think we're a "pawn," you are mistaken. Visit the Litigation Center on the AMA's Web site (link). There you will find ample evidence that we take on insurers when we document that they have done harm to patients and physicians.

Here's another e-mail: "Peer review may be one part of the solution, but it should be serious, responsible peer review of doctors and hospitals. ... Shining the light of investigation on negligence incidents would do more to reduce medical errors, thereby reducing malpractice claims."

The Institute of Medicine and the Health and Human Services Dept. say most medical errors are not failures of physicians, but failures of the system. Even when doctors do their jobs correctly, most errors would still occur.

A better approach to fixing the problem of system errors would be to dispel the fear of physicians, hospitals and nurses that open discussion on adverse events would be discoverable in lawsuits.

That's why we support the Patient Safety and Quality Improvement Act (S 720), a proposed federal law that would allow the voluntary, confidential reporting of errors to patient safety experts. The result would be advice on how to improve the system and therefore patient safety. This system fix would be shared with all in a de-identified manner. This model works for the Aviation Safety Reporting System. It would work in the health care field, too.

The AMA also helped launch the National Patient Safety Foundation in 1996 and has supported it since with more than $6.5 million dollars. Despite our repeated public challenges to match our donations, the Assn. of Trial Lawyers of America has not contributed a dime.

Another e-mail quoted the opening line of my last column: "The United States delivers the best quality of medical care in the world," and continued with this contention: "Thanks in no small part to the courageous efforts of the trial attorneys who are willing to challenge the careless doctors who are shielded by a medical establishment that stubbornly refuses to hold them accountable."

There is no evidence of any correlation between lawsuit awards or settlements and negligence, and lawsuits do nothing to enhance patient safety. Troyen A. Brennan led a 1996 Harvard study that found that the only significant predictor of payment to medical malpractice plaintiffs in the form of a jury verdict or a settlement was disability, and not the presence of an adverse event due to negligence.

So why are there frivolous suits? Is it because, as former Chief Justice Warren Burger said, "The courtrooms of America all too often have Piper Cub advocates trying to handle the controls of Boeing 747 litigation."?

Or is it the lawyer's lure of getting one-third to a half or more of a liability award jackpot -- money taken right out of a patients' resources for medical expenses?

What physicians want is basic fairness and a level playing field. I'd love to see the reaction of lawyers if they had to live within the same rules as doctors. Like the government ordering them to serve "legal care" clients and be paid a fee determined by a formula based on the gross domestic product. For good measure, make them subject to surprise government inspections that carry criminal and civil sanctions to ensure their complex charts and billing are in order. Doctors have to live with this every day.

Regardless of whose views prevail as to how to change the system, there will, ultimately, be change -- because patients will lose access to care as doctors retire early, limit their practice such as no longer delivering babies, or move to one of the six states that have more stable liability climates.

To all those who responded, I appreciate the effort you took to express your views to me. This open exchange of ideas is an important part of what makes America so great.

Donald J. Palmisano, MD is a general and vascular surgeon in private practice in New Orleans. He was AMA president during 2003-04.

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