AMA House of Delegates

Delegates target courts for liability reform expansion

Liability surcharges, countersuits and ethics surrounding physician job actions also were on the agenda.

By Tanya Albert Henry — Posted Dec. 27, 2004

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Tort reform is still the AMA's No. 1 legislative priority, but doctors have a list of other proposed changes aimed at reducing medical liability costs that they would like to see take hold.

Reining in medical expert witnesses was perhaps the most talked-about idea at the American Medical Association Interim Meeting here in December. It was also one that more than 6,000 AMA members who responded to a pre-meeting survey agreed was an area needing some changes.

Doctors at the meeting toughened medical expert witness standards outlining which colleagues they believe should be allowed to testify in court and sent a message that they want to see state courts adopt expert witness policies similar to those followed at the federal level.

The efforts are in addition to the AMA's ongoing push to pass federal tort reform that includes a $250,000 cap on noneconomic damages in medical liability cases. The reform has passed the House but failed to pass the Senate in this session.

With the AMA listing 20 states in the midst of a medical liability insurance crisis because physicians can't afford their premiums, doctors say they need to continue to do what they can to temper the situation.

"We know a cap is a necessary ingredient," said Donald J. Palmisano, MD, the AMA's immediate past president. "The other parts are very important, too. ... We need a system that is fair to patients, physicians and lawyers."

Expert witnesses

Doctors believe that setting stricter parameters for who is allowed to testify in the courtroom and what information is allowed before a jury can help alleviate some of the medical liability insurance problems they've seen.

"Holding these experts accountable is both necessary and appropriate," said Robert M. Phillips, MD, the delegate from the American Academy of Psychiatry and the Law.

Delegates directed the Association to create model state legislation that establishes standards similar to the ones used in the federal courts, including full and timely disclosure of expert witnesses' opinions, reports, qualifications, compensation and prior cases in which they've testified.

Doctors also said experts testifying about medical liability issues should meet minimum standards, including:

  • Comparable education, training and occupational experience in the same field as the defendant doctor or specialty expertise in the disease or the process performed in the case.
  • Active educational practice or teaching experience in the same field as the defendant physician.
  • Current experience within five years of the action that initiated the lawsuit.
  • Certification by a board that the American Board of Medical Specialties or the American Osteopathic Assn. recognizes or by a board with equivalent standards.

Some physicians said they would be more comfortable if an expert testifying against them was certified, especially if the sued physician held a board certification in the field. But others said board certification didn't automatically mean that the expert was going to give honest testimony, nor did it mean someone who was not board-certified was going to give false testimony.

"There are capable, caring physicians who are not board-certified," said K. Barton Farris, MD, an anatomic and clinical pathology specialist and delegate from Louisiana.

Liability surcharges

The idea of adding a charge onto patients' bills to help offset liability insurance premiums was a hot topic at the AMA Annual Meeting in June, with physicians clamoring for more information on whether it was legal.

The AMA spent the summer and fall studying the issue. The conclusion: A surcharge is OK as long as a contract or state or federal law doesn't prohibit it. The AMA also recommends that doctors get a lawyer's advice before they tack on that charge.

A number of physicians were disappointed with the guidance.

Patrick W. McCormick, MD, a neurological surgeon and alternate delegate from Ohio, said it does not give physicians any more support in contracting with insurers than they have now.

"As I read this report, I would translate it as, 'You're on your own,' " he said.

He suggested that the AMA push for measures allowing doctors to add contract amendments with payers that would enable them to collect surcharges for a whole range of added costs, not just liability. He also said the Association should consider renewing its campaign to allow private-practice physicians to bargain collectively with insurers.

Carlos Silva, MD, a general surgeon and a delegate from the Medical Society of the District of Columbia, echoed Dr. McCormick's concerns about the scope of the report and called the document "extremely weak."

"I have a lawyer," he said. "I cannot do anything more than ... what I have, according to this report."

AMA Trustee William A. Hazel Jr., MD, said the board did not believe it was its responsibility to explore the idea of administrative surcharges and other fees not related to liability. He warned that the Association might not want to focus too much legislative energy on an issue in which there remain a lot of pitfalls.

"We have to look, as always, as to where we want to spend our political capital over the next year," he said.

Collective job actions and countersuits

In addition to addressing courtroom and surcharge issues, delegates modified ethical policy so trial lawyers won't use it against doctors who participate in collective actions supporting tort reform.

The Council on Ethical and Judicial Affairs opinion now says physicians should refrain from using a strike as a bargaining tactic but that in "rare circumstances, individual or grassroots actions, such as brief limitations of personal availability, may be appropriate as a means of calling attention to needed changes in patient care."

The ethical guidelines say physicians should check with a lawyer to make sure they won't be violating antitrust laws. They also say physicians are free to decide whether participating in such advocacy activities are in patients' best interest, and that colleagues shouldn't pressure them to participate.

"We've drawn a bright line between advocacy and strikes," said Arkansas internist William E. Golden, MD, a delegate from the American College of Physicians.

AMA delegates also voted to:

  • Continue to pursue MICRA-style reforms as their top priority.
  • Pursue options that would fundamentally change the system to create fair and equitable compensation for injured patients while also promoting access to health care.
  • Advise AMA members about the option of countersuing plaintiffs and plaintiff attorneys if doctors are targets of meritless lawsuits.

Mary J. Hudak, MD, an internist and delegate from Pennsylvania, said her state offered the resolution because they have had success in countersuing a malpractice attorney and are considering lending their support to numerous pending suits.

"This is a member benefit," she said, referring to the assistance that the AMA can provide for physicians in litigation.

But orthopedic surgeon Richard A. Geline, MD, a delegate from Illinois, responded that encouraging physician countersuits is a waste of time and will get doctors' hopes up where usually there are none.

"Your chances of prevailing in a countersuit of an attorney are practically nil," he said.

AMNews reporter David Glendinning contributed to this report.

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Insurance industry probe could include liability firms

Connecticut Attorney General Richard Blumenthal is expanding an investigation of the insurance industry to see if possible misbehavior by insurers has contributed to rising premiums for physicians and other professionals.

Blumenthal and New York Attorney General Eliot Spitzer are investigating the industry amid accusations that insurers and brokers rigged bids and took kickbacks. They have subpoenaed insurance companies as part of their investigation but would not say if that includes medical liability insurers.

Blumenthal said his office was examining professional insurance, such as medical liability coverage for physicians and malpractice insurance for lawyers, to determine if there had been illegal activity by the insurance industry.

"We're looking to see if there have been any violations to antitrust laws that could produce higher premiums for insurance," Blumenthal said. "If there have been violations causing higher premiums, we certainly hope for remedies to stop abuses and return money to consumers."

--Damon Adams

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