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Health Issues Brief
Medical Liability Crisis worsens;
Florida Hospital and others seek solutions

December 2002

The medical liability insurance crisis in Florida has gone from bad to worse in the last 30 days, seriously threatening patient access to physician and hospital services.

"This is not about patient inconvenience any longer," said Richard Morrison, Regional Vice President for Government and Community Relations at Florida Hospital. "Medical services that our community counts on, especially in an emergency, are simply not going to be available as they are today."

"Women will not be able to get timely mammograms and Pap tests," he continued. "Some emergency rooms won’t have surgeons and other specialists to treat critically ill patients. People without insurance who already have problems finding care will be the most affected, but all of us will have a problem finding care in the near future."

Divergent interests

"We must find solutions that help patients, and not worry about protecting the interests of one professional group over another" said Morrison.

"Obviously, the four parties involved – physicians, hospitals, insurance providers, and attorneys– have divergent interests," he noted. "Some physicians and hospitals don’t want increased oversight, insurance companies want to make a profit, and attorneys don’t want their incomes affected by caps on jury awards."

"Much of the public believes it has a right to limitless awards for pain and suffering and are not aware of the domino effect of large jury awards on medical liability premiums," he continued. "And some people believe that doctors aren’t being held accountable for true malpractice – so they use punitive jury awards to send that message."

"But these huge awards are infringing upon the right to healthcare – including emergency care," he added.

Three-prong approach required for Medical Liability Reform

Balancing these conflicting interests is the only way to bring stability and enhanced quality to the healthcare system, said Morrison. He believes that Medical Liability Reform must address three elements: physician and hospital accountability, tort reform, and insurance reform.

  • Physicians and hospitals must demonstrate that they are willing to discipline their peers whose mistakes are regularly related to negligence, and be committed to continuous quality improvement.
  • The tort system must be revised to include caps on jury awards for non-economic (pain and suffering) damages.
  • Insurance companies must have some way to predict risk, but must also offer fair rates and price their products on actuarially sound assumptions.

Patient access to care threatened

In the last 30 days,

  • One of the largest and most respected Surgery groups in Central Florida has said they may stop practicing if they cannot find a new medical liability carrier.
  • Two more Obstetricians said they will no longer deliver babies. They join at least 12 other obstetricians who stopped delivering babies or moved out of the state this year. Conservatively estimating each physician's patient load at 4,000 patients, at least 48,000 women have must change physicians.
  • The president of the Orange County Medical Society - a Radiologist - cannot get insurance coverage that allows him to read mammography films. Also, fewer radiologists are available to read screenings and diagnostic mammograms, resulting in delays.
  • Florida Hospital Altamonte has just one Orthopaedic Surgeon remaining on staff.
  • One of the two Neurologists practicing at Florida Hospital East Orlando has resigned.
Why are they leaving practice? Because physicians in Florida pay the highest medical liability insurance rates in the 50 states, and only five insurers in Florida are writing new policies - compared to 50 a few years ago.

Why are the rates so high? Because physicians in Florida are sued twice as often - even though their proven malpractice rates are the same as the rest of the nation.

Short-term and long-term action needed

Florida Hospital has developed short- and long-term recommendations for relief from the current and impending crises.

In the short term, Florida Hospital recommends:

  1. Immediate caps on non-economic (pain and suffering only) damages for all care provided in emergency rooms unless there is evidence of reckless disregard.
  2. Immediate caps on medical liability insurance increases.
  3. Referral of all new malpractice actions to a newly created, state-led Merit Panel.

Long-term action

To bring meaningful long-term change to the system, Florida Hospital recommends:

  1. Caps for non-economic (pain and suffering) damages subject to participation in comprehensive peer review. These caps would apply to pain and suffering only. They would cap non-catastrophic injury at some number (e.g. $250,000) and catastrophic injury or death at a higher number (e.g. $750,000). The caps would also assume that malpractice has been clearly demonstrated using higher standards of proof that those currently in use (see #9 below).
  2. Regular and comprehensive physician peer review. To be eligible for these non-economic caps, physicians would participate in regular and comprehensive peer review.
  3. Regular and comprehensive hospital peer review. Hospitals that participate in peer review would also be eligible for caps on non-economic damages. Hospital peer review would include documentation of practice, medication errors, major adverse events that are not physician-related, nosocomial (hospital-borne) infection rates, patient falls, and staffing qualifications.
  4. A peer review Quality Assurance Board administered by the State of Florida. The Board would audit physician and hospital peer review processes.
  5. Insurance rates based on an actuarially sound basis, with favorable rates offered to physicians who participate in peer review.
  6. Jury pools selected from registered voters rather than the current driver’s license system.
  7. Review of all new malpractice claims by a state-appointed Merit Panel, which would render a determination that a case warranted hearing by a court. The findings of the panel would be admissible in court.
  8. A fee schedule for non-economic damages. Currently, criminal offenses are "scored out," and the scores determine the sentence given. A similar "scoring" system for pain and suffering would provide a framework – or schedule – for jury awards for pain and suffering within the established caps.
  9. Elevated standard to clear and convincing evidence in malpractice cases. Currently, the only standard used is the civil case standard of preponderance of evidence.
  10. Known and disclosed potential complications of care should not be actionable unless the complication was as a result of reckless disregard.
  11. Disclosure of their medical complication rates. Physicians would be required to disclose their complication rates for various medical procedures. They would provide written information on the risks and complications associated with a procedure. Patients would sign copies of disclosure and complication information as part of the informed consent process.
  12. Court-appointed expert witnesses, as opposed to conflicting expert witnesses brought in by defendants and plaintiffs. Court-appointed expert witnesses would subscribe to a common code of conduct and guidelines.

What’s next?

The Florida Legislature will wrestle with the Medical Liability Crisis during its 2003 session.

"It’s a complicated issue," said Morrison at a Healthcare Crisis Community Conversation hosted by the Crummer Graduate School of Business at Rollins College on December 17. "The legislature may need the wisdom of Solomon to balance the right to access to care and the access to courts, but we need action – soon."

Sources

1. Medical Liability Monitor
2.
Jury Verdict Research
3.
Florida Hospital Association
4.
USA Today, 12/3/01
5
Health Care Liability Alliance
6.
American Medical News, 12/3/01
7.
The Orlando Sentinel, 1/20/02
8.
The Tallahassee Democrat
9.
Florida Department of Health

10. American Medical News, 12/3/01
11. Health Affairs, Jan./Feb. 2002
12. Internal Risk Management Institute
13. AvMednews.com
14. Pennsylvania Medical Society
15. Wirthlin Worldwide Poll for Health Care       Liability Alliance
16.
Milliman USA, November 2002
17.
Florida Insurance Council

This and other Florida Hospital Issues Briefs are published four to six times a year by the Government & Community Relations Department.

© Florida Hospital Government & Community Relations, December 2002. Revised 18-Jul-2007

This Health Issues release is located on the Internet at: http://www.floridahospital.org/news/healthissues/


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