Malpractice Suits--a New Epidemic Faced by Doctors

Much like California a decade ago, Florida is in the midst of a medical malpractice insurance crisis.

But unlike California, which saw its crisis ended after the Legislature went into special session to enact laws aimed at protecting the physicians, there appears to be no end in sight here.

Further, says the American Medical Assn., the crisis does not appear to be limited to Florida. Instead, it is spreading from coast to coast, fueled by the increasing number of lawsuits and the size of damage awards plaintiffs are receiving.

In parts of Florida and New York--another hard-hit state--$100,000 premiums are common for neurosurgeons. A typical obstetrician on Long Island or in Miami can expect to pay $75,000 a year for protection against being sued for delivering a defective infant.

“There is a crisis that is as bad if not worse than in 1975,” Dr. John Coury, chairman of the AMA’s board of trustees, said in an interview. “There will be opposition from the legal profession, but the people must be told it is as much their problem as the doctors’ problem because the public will have to pay for it in dollars or in quality of care. It is the highly specialized doctors who will stop what they are doing.”

Indeed, in Florida, some specialists are becoming apprehensive about performing certain high-risk procedures.

“I think that there is considerable risk that the services of neurological surgeons will no longer be available to the people in Florida after 1987,” St. Petersburg neurosurgeon John M. Thompson told a colleague earlier this year.

Thompson predicted that within two years, the University of Florida at Gainesville will be one of the few places in the state where critically injured patients who require delicate neurological surgery will be able to obtain it.

“I now refuse to see patients referred by attorneys, insurance companies, other patients or self-referrals,” Thompson said in a recent interview. “I only see new patients who are bona fide emergencies in the emergency room and patients who are referred by other physicians.

“There are many neurosurgical procedures that I am capable of doing which I will no longer do because I feel there is too much risk in doing these procedures in the state of Florida.”

Even delivering a baby apparently has become something to be avoided in some parts of the state.

Arranging deliveries for the 60,000 poverty or near-poverty level babies born annually in Florida is one of the state’s biggest health problems, said Dr. Charles Mahan, a University of Florida obstetrician who also is director of maternal and child health care for the state.

2 Interrelated Factors

In the case of obstetrics, he said, the problem is the result of two interrelated factors: Florida’s skimpy $300 payment for delivering a baby to a woman on Medicaid, the state’s health program for the poor, and the strong conviction of obstetricians that Medicaid patients are suit-prone.

Poor women who live in rural areas have the most difficult time finding a doctor to deliver their babies and a hospital that accepts deliveries, Mahan said. In many rural places, the state has been forced to hire nurse midwives because of the difficulty in getting doctors to deliver Medicaid patients.

Mahan strongly disagrees with those doctors who believe that the poor are more “suit happy” than the more affluent segments of the population.

“There is no documentation for the assertion that the poor sue more often,” he said.

Nevertheless, Dr. James M. Ingram, chief of obstetrics and gynecology at Tampa General Hospital, where about 95% of the 5,000 babies born annually are delivered at public expense, doubts Mahan’s assertion.

According to Ingram, over half of the babies born at his hospital are at high risk of having some defect, either because their mothers had little or no prenatal care or have an illness or nutritional deficiency that endangers the babies.

The combination of low income and high risk of bearing a defective baby combines to produce “a very high willingness to sue,” Ingram said.

But this is not to say that wealthier women don’t also sue.

Requests for Records

Dr. Philip Thomas, an obstetrician who is chief of staff at Tampa’s Women’s Hospital, a private facility that handles few, if any, Medicaid patients, said his office frequently gets requests from attorneys for patients’ records--an indication that they are being reviewed for possible evidence of negligence.

Thomas said he and his three partners pay $15,000 a month for their malpractice insurance to cover them for the roughly 30 babies they deliver each month, plus their gynecological services.

While a debate rages here over whether the malpractice crisis has been brought on by incompetent doctors or greedy lawyers, there is a growing awareness that something must be done to protect society from the negative impacts the crisis is having.

Robert Harrell, the official who administers Tampa’s municipal employees’ health plan, said his city, like other employers in the state, is concerned that “the cost of medical malpractice is affecting the cost and availability of health care” for employees.

Tampa this year will pay a $6-million premium for health insurance to cover 3,705 employees and their dependents, he said.

Harrell said that while malpractice premiums account for only a small percentage of Tampa’s total health-care costs, he still questions how much of the bills turned into the city for drugs and hospital care in reality are “defensive medicine” charges--procedures performed or prescriptions ordered by a physician in an attempt to avoid any malpractice problems.

Indeed, physicians all over the United States know that they are more likely to be sued today than they were a decade ago when the malpractice crisis hit California.

16% Chance for Suit

Then, the average physician in the United States stood a 3% to 4% chance of having a malpractice claim filed against him in a given year. Today, according to the AMA, the national average is 16%.

But in Florida, one of the fastest growing states in the Sunbelt, the litigation figures are even higher. This year, according to the Florida Medical Assn., the average physician will have a 25% to 30% chance of being sued.

Not only the number of suits, but also the amount awarded to the patient, has been rising steadily. In the Southern states--heavily influenced by the experience in Florida--the average malpractice claim payment by physician-owned insurance companies rose from $13,139 in 1979 to $106,712 in 1983, a 712% increase. The increase during the same period was 143% in the West and 142% in the Northeast.

In Florida alone, there were 12 claims of $1 million or more in 1983, compared to none in 1981.

The explanation for this striking escalation varies, depending on who is asked.

While admitting that a small percentage of suits is due to incompetent or negligent practitioners, doctors tend to place most of the blame for the malpractice crisis on the lawyers. It is the legal profession, the doctors argue, that exploits patients’ unrealistic expectations that medicine is a science that can produce perfect results.

Trial lawyers, on the other hand, contend that their targets are the “bad” doctors who commit negligible acts. According to the Academy of Florida Trial Lawyers, 24% of all reported malpractice claims have been attributable to 149 of the state’s 20,000 physicians.

Charges of Mismanagement

In addition, the trial lawyers charge, physician-owned malpractice insurance companies have been grossly mismanaged, adding to the cost problem.

Dr. James S. Todd, a Ridgewood, N.J., surgeon who recently became a top official on the AMA staff, has admitted that “the basis of the malpractice problem is malpractice.”

Ninety-five percent of claims dollars are for actions by doctors that are “indefensible,” Todd told a conference on professional liability held in San Francisco last year.

“The public will not willingly bail us out from a problem they perceive as a failure of medical excellence,” he said.

Todd, who at the time of his talk was president of a trade group of 40 physician-owned malpractice insurance carriers, said the medical profession “must get its own house in order before expecting much credibility or help from the public.”

But at the same time, an AMA task force has also called for a major effort for states to write new legislation dealing with torts.

In Florida, tort reform as it applies to the malpractice problem has had a tumultuous history.

In 1975, the Legislature created mediation panels consisting of a physician, a circuit judge and a lawyer that screened all claims before a trial. Even if the panel found no negligence, the plaintiff could still go to court, but the panel’s decision was admissible as evidence.

Five years later, the state Supreme Court declared unconstitutional the way that the law creating the panels was being administered. The court’s action paved the way for a 40% increase in the number of malpractice cases filed the next year.

The physicians then went back to the Legislature seeking new tort reforms. But the Legislature, heavily dominated by trial lawyers, balked for three years in a row.

Tort Reform Referendum

Last year, the Florida Medical Assn. raised $2 million for a petition drive to place a general tort reform referendum on the 1984 ballot.

The amendment sought to reduce malpractice premiums in several ways, including preventing juries from awarding malpractice victims more than $100,000 in compensation for mental anguish. The amendment would also have guaranteed that doctors would only pay an award commensurate with their share of the guilt, even if others at fault could not pay.

The doctors hired the Kimball Co., a consulting firm that helped manage California’s successful lottery campaign last year, and collected almost twice the number of signatures needed to qualify for the ballot.

But before the election could take place, the Florida Supreme Court declared the proposed amendment unconstitutional on the grounds it violated a requirement that amendments proposed by petition address only one subject.

Meanwhile, a Governor’s Task Force on Medical Malpractice, composed of industry leaders, labor union representatives, insurance company officials and others, recently proposed a legislative package that would tighten both the licensing standards for physicians and make tort laws more effective. The Florida Medical Assn. also will offer its own version of tort legislation.

Aimed at Defensive Medicine

According to the American Medical Assn., the goal of such legislative packages in Florida and throughout the nation is not only to reduce the cost of malpractice premiums--which inevitably are added to patients’ bills--but also to do away with what physicians claim to be the more significant impact of so-called defensive medicine.

The AMA claims that defensive medicine--tests and other procedures performed on patients solely to protect the doctor should he be sued--adds $15 billion to national health expenditures each year.

Yet trial lawyers, and even some doctors, challenge the assertion that fear of legal action is the chief reason that doctors perform needless tests.

They point out that the desire to maintain an income that is being eroded by the increasing competition among doctors may be the greater incentive for practicing defensive medicine.