Defense of truth never rests in medical liability debate

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 April 19, 2004.

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Through 10 months as AMA president, I've spoken to scores of state and county medical associations, specialty societies, physician rallies and civic groups. I've done what seems like countless interviews with reporters for local and national media and delivered the AMA message on C-SPAN, CNN, NBC, CBS, ABC, Fox and MSNBC.

Most of these appearances have focused on a medical liability crisis that threatens patient access to care in 19 states -- home to about half the U.S. population. Another 25 states are at risk.

The AMA message is credible, consistent and based on evidence. It explains the urgent need for reform and offers a practical, proven solution.

We're getting that message to our patients. But we can't let up, not for one second. Because our opponents are stepping up their fight as well.

Among their weapons are myths and misinformation. One recent example was a commentary in the March 24 USA Today. Written by a law professor, it appeared torn directly from the playbook of this broken system's defenders.

It included several claims that the AMA has debunked time and again. Let's once more round up some usual suspects:

Myth: Medical liability insurance rates have been rising because insurance companies have lost money in the stock market.

Fact: A.M. Best Co. reports that medical liability insurers have about 80% of their investments in bonds. In fact, their return on investment has been stable and positive for the past five years at 4.5% to 5.4%.

A recent report by Brown Bros. Harriman & Co. confirms that no correlation exists between the premiums charged by the medical liability insurance industry, on the one hand, and the industry's investment yield, the performance of the U.S. economy or interest rates, on the other.

In short, insurers aren't charging physicians higher premiums for these alleged investment losses. Such losses are undocumented -- because they haven't happened. The real reason for higher rates is that more money is being paid out in awards and settlements than is being received in premiums.

Myth: Medical malpractice is rampant, according to a study released by the Institute of Medicine claiming that 44,000 to 98,000 hospital patients die every year from preventable accidents, and many others have severe and permanent injuries.

Fact: The report used outside data that produced estimates that have been misinterpreted and misrepresented, and extrapolated from data collected years ago from only a handful of hospitals.

That's not just my opinion -- these estimates also are disputed by prominent, independent researchers such as Indiana University School of Medicine's Clement J. McDonald, MD. The title of his 2000 JAMA article sums it up: "Deaths Due To Medical Errors are Exaggerated in Institute of Medicine Report."

The IOM report does make one fact clear -- medical errors aren't about "bad doctors."

Errors can involve nurses, pharmacists, health technicians, aides -- in short, anyone working in the complex system of health care delivery. The key word is "system." As the IOM report states, "errors almost always result from poorly defined systems -- not from careless providers."

To stop errors, we must replace the culture of shame and blame with improved systems of safety. The same approach is used in the nuclear and aviation industries.

Toward that end, we helped launch the National Patient Safety Foundation in 1996 -- and have supported it with $7.2 million. So far, the Assn. of Trial Lawyers of America hasn't offered a penny, despite our repeated challenges to match our donations. We also strongly support patient safety legislation now before Congress -- HR 663 in the House of Representatives and S 720 in the Senate.

Myth: Only 5% of physicians account for most malpractice claims, according to reports to the National Practitioners Data Bank.

Fact: The NPDB collects both settlements and verdicts -- and it should be obvious by now that a settlement is not an admission of negligence. In fact, many meritless cases are settled because the defendant doesn't want to risk having a jury compensate a patient with a huge award -- with no regard to whether negligence occurred. Yet these settlements wind up in the NPDB's malpractice tally.

NPDB data and related reports do not account for physicians who perform high-risk procedures. So specialties such as orthopedics, obstetrics and neurosurgery are not properly identified and analyzed. And even if it is true that 5% of physicians account for most malpractice claims annually, it's not the same 5% from year to year.

Also, NPDB overstates the number of cases. For example, cases in which a patient receives a payment from the insurance carrier, a payment from the CAT fund and a payment from the physician, all for the same event, often have been represented in the NPDB database by three separate reports. Therefore, three "occurrences" could be recorded for a single incident.

These and other myths turn up in newspaper accounts and in questions by interviewers. So I like to remind the media to focus on the facts.

Let's challenge the media to do real investigative reporting and not just accept at face value the junk-math studies churned out regularly by our opponents -- and often released just before a hearing on medical liability reform.

I urge reporters to consult the American Academy of Actuaries' data showing that caps on noneconomic damages work. And A.M. Best's data show the real numbers about the positive returns on insurance company investments.

These truths are found in the document "Medical Liability Reform -- Now!" available at on the AMA Web site (http://www.ama-assn.org/go/mlrnow).

As the philosopher John Locke wrote, "It is one thing to show a man that he is in error, and another to put him in possession of the truth." Truth -- science -- the facts: These light our way in our quest for reform. It's a light we can never let go out -- and we must share it with others.

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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