The American Medical Association has designated Rhode Island as a medical liability “crisis” state, citing a “deteriorating” legal climate and a “growing threat of patients losing access to care.” Rhode Island joins 19 other states, including Massachusetts and Connecticut.
“Patients bear the brunt of the nation’s broken medical liability system,” said Dr. William G. Plested, an AMA trustee and former president who visited Providence last Monday. “The cost of unrestrained litigation not only jeopardizes patients’ access to physicians, hospitals and clinics, but also inflates the cost of medical services.”
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The AMA classifies states as “OK,” “showing problem signs” or “in crisis” on the basis of three major factors, Plested said: how fast medical malpractice insurance premiums are rising, whether doctors say the costs are pushing them to move or retire, and whether doctors say they are limiting the services they offer to avoid liability.
Since 2002, malpractice insurance costs have risen 286 percent for hospitals, 200 percent for general practitioners, and 175 percent for surgeons, the Rhode Island Medical Society says. And a Medical Society survey of local doctors found 47 percent were considering moving or leaving clinical practice, 41 percent were considering no longer performing certain procedures, and 71 percent had found it hard to recruit new doctors.
The numbers make it clear, Society President Dr. Fredric V. Christian said: The state’s medical liability system is “in desperate need of reform.”
Plested went further, saying Rhode Island faces “an unrestrained legal assault,” and it’s time for the state’s local and federal representatives to “stand up and do what is necessary” to fix the current “jackpot justice system” and protect patients’ access to care.
At the national level, President Bush is pushing, with strong AMA support, for a “tort reform” package modeled after California’s 1975 Medical Injury Compensation Reform Act (MICRA), which limits plaintiffs’ rights and caps jury awards for non-economic damages at $250,000.
Locally, a Medical Society-led group called the Patients First Coalition is promoting a less aggressive package it says would “stabilize” the market, which has lost several carriers and is described by those who remain as a difficult place to operate.
The coalition’s proposal and an identical measure sponsored by Gov. Donald L. Carcieri would lower the statute of limitations for minors (for injuries at birth, e.g.) from age 18, to 8; require plaintiffs to attach a “certificate of merit” with any suit showing an expert agrees the claim is “reasonable and meritorious”; allow pre-judgment interest to accrue only after a suit is filed – not when a notice of claim is given – and reduce the rate from 12 percent to 5 percent until the plaintiff has disclosed all his experts, then 8 percent thereafter.
A chart compiled by NORCAL Mutual Insurance Co. two years ago shows Rhode Island has the longest delay from the time of injury to the date of payment in malpractice claims, 6.44 years, well above Massachusetts’ 5.59 years and more than double California’s 3.02 years.
At an event announcing the AMA “crisis” designation, Christian cited the NORCAL figures as proof that the 12-percent interest rate and other provisions don’t actually help plaintiffs, but hurt them because they “delay justice.”
Christian also cited an analysis by Tillinghast, the insurance division of global consulting firm Towers Perrin, showing the Patients First bill, if enacted, could reduce medical liability costs in Rhode Island by 8 to 10 percent, not counting possible “indirect impacts” such as “possible better settlements” due to an earlier knowledge of the strength of each case.
The Tillinghast analysis did not, however, consider other factors that plaintiffs’ lawyers say affect the duration of malpractice cases in Rhode Island, such as general inefficiencies in the court system, the small number of defense lawyers, and insurers’ unwillingness to settle.
A report filed with the state this year by the Medical Joint Underwriting Association of Rhode Island (MMJUA) also appears to counter insurers’ suggestion that plaintiffs’ lawyers routinely wait until the last minute to file claims: Of 95 claims filed against the MMJUA last year, 65 involved incidents in 2003 or 2004, and another 13 went back to 2002.
Only seven of the MMJUA’s 2004 claims were closed in 2004, however, and three-quarters of the indemnity paid in 2004 involved incidents in 1999 or earlier. The single biggest payout, $3.5 million, was for a 1997 incident, and another $1 million was paid in a 1986 case.
Marti Rosenberg, executive director of Ocean State Action, a consumer and health care advocacy group that is promoting a rival medical malpractice reform package, said the truth is that Rhode Island’s problem is not a broken tort system, but a broken insurance system.
“We need to pass comprehensive reform that holds the insurers accountable for the skyrocketing rates,” Rosenberg said, adding that her group would like to strengthen the state’s ability to hold down rates when insurers’ surpluses “soar,” and to “demand transparency in how the insurers calculate rates.”
Rosenberg also said it’s the insurers’ lawyers who delay cases needlessly. Superior Court Judge Patricia A. Hurst recently sanctioned one defense lawyer, David W. Carroll, for doing that, Rosenberg noted. Hurst ordered a $4,472 payment to penalize Carroll for making “baseless objections and claims of privilege” to stall a case against Women & Infants Hospital.
As for the AMA’s “crisis” designation, Rosenberg said, “it’s political.” Nothing has changed to warrant an upgrade to “crisis” status, she said, but the AMA is now trying to enlist U.S. Sen. Lincoln Chafee’s support for President Bush’s “tort reform” plan.
(Actually, the state’s situation has gotten worse in recent months: NORCAL raised its rates by 19 percent, ProSelect Insurance has raised rates by 15.05 percent for doctors and 38.66 percent for hospitals, the MMJUA made a change that raised hospitals’ premiums by an average of 23.7 percent, and the Medical Protective Co. stopped writing policies in Rhode Island.)
Still, Rosenberg said there’s no major difference in malpractice premium trends in “OK,” “problem” or “crisis” states – all three saw rates rise by an average of 18 percent in 2003 – and 2003 average premiums were actually slightly higher in “OK” states than in “problem” states.
Ironically, the Patients First package being touted at Monday’s event would only bring Rhode Island roughly in line with Massachusetts, designated as an AMA “crisis” state last year.
Yet more dramatic “tort reforms” are viewed as unsellable with Rhode Island legislators, so Patients First and its individual members always stress that they only want modest, “common-sense” changes that stop short of MICRA-style caps.
Asked whether what the state really needs is MICRA-style reform, Christian said what he wants is “a rebalancing of the system, and if MICRA is part of what gets us there, then it needs to be discussed.”
The Patients First Coalition held two events to tout the AMA “crisis” designation: one at the offices of Dr. Stephen Sarin, a neurologist and brain surgeon who said his malpractice premiums have risen from about $28,000 in 1998 to $79,000 now, and another at South County Hospital, which has struggled to preserve ob/gyn services in the face of spiraling costs.
The AMA’s Plested spoke at both events, urging lawmakers to “look to proven remedies” to fix the medical liability system, citing MICRA and a “sweeping” reform in Texas in 2003 as examples. The Texas reforms, which included a $250,000 cap on non-economic damages, have already saved the state’s health care system about $50 million, he said.
Along with adding Rhode Island to the “crisis” list, the AMA on Monday took Texas off that list, reclassifying it as a state where “effective reforms” are “halting” a crisis.
