Editor`s Opinion: Choose to be Part of the Solution – Not Part of the Problem

  If you live in the US and not in a cave, you have heard your share of stories and opinions on the current medical malpractice crisis. Perhaps you joined striking physicians, signed petitions demanding legislative relief, moved, changed jobs, or even looked for another physician for yourself. If you do not live in one of the current 18 acute crisis states, beware. According to a Time Magazine special report, 27 states are showing early symptoms of the same problem.¹ If you do not live in the US and have not heard about our healthcare system crisis du jour, allow me to explain.

    During the past year or so, the insurance premiums some physicians have to pay for professional liability coverage have skyrocketed. Some states have seen median increases of 48%. Some physicians can no longer obtain any insurance at all because their carriers refuse to renew current policies or because insurance companies are pulling out of a particular specialty or geographical area altogether. Although the phenomenon is not new (similar crises occurred in 1975 and 1985), its impact is felt more broadly and acutely this time around because health insurance premiums in general are rising at unsustainable rates, yet reimbursement for services has been curtailed for many years. Simply put, insurance premium increases are much higher than the rate of inflation (and pay increases) while benefits for the insured and reimbursement rates for providers have steadily declined. Understandably, this has people in the public and healthcare sectors worried, upset, and angry.

   The emotions flowing from the crisis are fueled by various interested parties and have resulted in the blame-game aspect of public policy issues. My unofficial ranking of the top four recipients of blame as depicted in the popular media and my local newspapers is, 1) greedy lawyers, 2) excessive jury verdicts, 3) "bad" doctors, and 4) poorly managed insurance companies. It should be noted, however, that blame recipient #4 was acknowledged only recently. Historically, the crisis has been framed by lawyers and doctors appearing in the boxing ring of the public arena, with the American Medical Association (AMA) and the American Bar Association providing the trainers and the insurance companies keeping score (even as they cheer on the doctors and support the AMA). More recently, the scorekeepers have been brought into the ring, and the effect of some of their practices on creating (or helping create) this crisis are now publicly questioned. Are increased premiums the result of trial lawyers and jury verdicts or simply the result of insurance company investment losses and efforts to prop up their finances? Could it be that increased rates conveniently put pressure on legislators to cap payouts - a much-coveted outcome that may not keep doctors' costs down but certainly has been shown to increase insurance company income?¹

   Regardless of one's personal stake or feelings about the issues, one thing is certain: Everyone is, or will be, affected. Most of us need a doctor and a lawyer from time to time. When that happens, we tend to be more vulnerable than normal and have no choice but to trust their judgment. This, in turn, helps explain why the outrage of patients who were (or feel as if they were) wronged is strong when discussing malpractice reform. Unfortunately, under the current system, victims abound. Contrary to popular belief, the vast majority of patients who suffer harm because of negligent care do not receive any compensation and, if they do, it is often unpredictable and inconsistent. Patients and providers continue to be wronged because the system focuses on punishing providers (and systems) rather than on preventing or deterring malpractice. Because the legal system is unpredictable and inconsistent, providers do not know what to expect or how to avoid or prevent claims. Furthermore, adequate information is difficult to obtain because most of us only read the occasional case study (ie, the multi-million-dollar case that makes a good headline). We rarely read anything about cases that are overturned on appeal or too small to make the headlines. Cases settled out of court are often confidential. As a result, providers tend to base their beliefs on how to conduct their practices on the outcomes of the case studies that happen to be headline news.

   History also has shown that the current system is financially unstable, with cycles of rate swings that are disruptive to the system, undermine public trust, and adversely affect patient access to care. Insurance company practices and balance sheets are, at best, mysterious - yet their effect on all aspects of the healthcare system is enormous. A case-in-point is the most frequently discussed reform proposal to cap non-economic damages, better known as "pain and suffering." It is the one situation that has been shown to be most beneficial to the insurance industry, as opposed to providers or patients.^1,2 Furthermore, as observed by the Pew Charitable Trust, the views of one of the most important stakeholders in all of this - the patients - are rarely heard.²

   Unquestionably, the current system is seriously flawed, as are historical and current attempts to fix the crisis through legislation, in part because only the most politically powerful stakeholders tend to be heard. Equitable reforms would be those "society would adopt if those making the choices did not know whether they would be patients, injured patients, physicians, physicians who injured patients, wealthy, poor, and so on."² A just system would have appropriate objectives and appropriate methods of achieving them.

   Any type of reform must be fair because fairness is an essential attribute of any social relationship. Witness the outrage about our current system - ie, it is unfair for too many people. As healthcare professionals, we have a duty toward our profession and toward the patients we serve. We are not simply stakeholders - we are also patient advocates. We wouldn't dream of basing our practice on the results of case studies, sensational headlines, or the rhetoric of a few interested and powerful parties. While even the most extensive literature search will, unfortunately, provide little more than case studies, the recently published Pew Charitable Trust report represents a much-needed reasoned analysis of the problems without the partisan tone so common in reviews about medical malpractice. Reduced to its basics, the Pew report is a variation on the old theme, "If you're not part of the solution, you are part of the problem". Words to live by if we really want to resolve the malpractice crisis.