FIRST DO NO HARM: A CONSUMER RESPONSE TO THE MEDICAL LOBBY'S CAMPAIGN TO LIMIT THE LEGAL RIGHTS OF INJURED PATIENTS

A Report Issued Jointly By The Center for Medical Consumers and The New York Public Interest Research Group

EXECUTIVE SUMMARY
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The American Medical Association has identified a number of states where the medical malpractice situation is considered a "crisis." One of those states is New York , whose physicians, led by the Medical Society of New York State, were so concerned that in April of this year they organized public protests against an "out-of-control medical liability system" which they warned would result in New Yorkers losing access to their physicians. According to a spokesperson, "Skyrocketing premiums have forced obstetricians to discontinue the obstetric side of their practices. This leaves women without access to the critical obstetrical care they need."

Are these charges leveled by the Medical Society of New York State and the AMA about New York being one of the states in "crisis" true? There is no doubt that New York physicians have been paying the nation's highest medical malpractice insurance premiums for years. Has anything new happened to precipitate a "crisis?" We don't believe so - and have written this report after examining the allegations made by the medical lobby about the state of medical malpractice insurance for physicians in New York medical malpractice in light of the available evidence. We hope it will separate objective, evidence-based fact from the medical lobby's fiction.

It is our conclusion that the campaign launched in New York State this year is truly a campaign of deception. Much of what the medical lobby claims is occurring and its consequences are simply not true - and often is contradicted by the evidence.

Thus, our organizations urge policymakers to focus their priorities on efforts to reduce medical mistakes and reject proposals to weaken the legal rights of injured patients and their families.

SUMMARY OF FINDINGS:

1. Despite all the hype, there has been no significant increase in medical malpractice premiums this year. After reviewing federal malpractice information and New York State court data, we can find no evidence that there has been a significant increase in the number of medical malpractice lawsuits against physicians in New York State or that the insurance carrier's loss experience requires such an increase.
2. Despite the allegations of the medical lobby, there no evidence that New York State is losing physicians, it is in fact gaining them. New York 's medical malpractice litigation environment and high insurance cost appears to have little - or no - influence over the desire of physicians' to practice here. New York State has the second highest number of physicians per capita of any state in the nation. In addition, New York State has a high number of medical specialists most likely to be sued - surgical specialists (the highest number in the nation) and obstetrician/gynecologists (OB/ GYNs ) (the third highest number).

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   Ironically, the state of California (which is the "model" of reform for the Medical Society and the AMA) has fewer physicians per capita than New York . Moreover, relative to the rest of the nation - and New York State - the per capita number of California physicians has declined in the 1990s!
3. Few physicians pay malpractice awards. Nearly 90 percent of New York physicians did not pay a malpractice claim in the 1990s. However, a large percentage of malpractice payments are made by a small number of doctors. Well over one-third of all malpractice payments are made by a tiny percentage of physicians - about two percent.
4. There is little evidence that litigation causes unnecessary medical treatments or procedures ("defensive medicine"). Those who would like not to be held legally responsible for their incompetence have been beating the defensive medicine drum for decades. While it is maybe difficult to measure the exact degree of influence physician concerns about their liability has on medical practice, it is not impossible. The federal government's Office of Technology Assessment has determined that liability concerns have a relatively small effect on practice patterns. And, some so-called "defensive medicine" may be good medicine - averting unnecessary patients' injuries.

RECOMMENDATIONS:

Policymakers must make protecting patient safety as their number one priority. Common sense proposals called for by the IoM and others should be the first steps taken by reformers and include:

1. Better reporting of hospitals' and physicians' health care quality. Consumers should have easy access to hospital quality data already collected by the State Health Department. Such information should be contained in a "hospital profile" that includes reports of the experience level of a hospital and its physicians in performing particular surgeries and other treatments.
2. Create a system of periodic recertification of physicians. Both the National Academy of Sciences' Institute of Medicine and the New York State Health Department have recommended that physicians be recertified to assure that they continue to be able to practice as competent professionals. Over time, physicians may see some of their skills erode and it is almost impossible to keep current with the latest medical research and advances in technology. In an effort to identify these physicians before a patient gets harmed, a system of recertification based on testing competency is needed.
3. Require the State Health Department to review malpractice payments by physicians to identify potential problems. As mentioned earlier, a small percentage of physicians account for an extremely high percentage of malpractice payments in New York . The overwhelming majority of physicians make no malpractice payments, yet their high premiums help subsidize the losses caused by a few. The State Health Department collects from insurers the data showing the malpractice payments of physicians and has recently pledged to use that data to identify problem doctors. A law should be passed to make that pledge a Departmental requirement.
4. Require health care providers who make a medical mistake to tell the patient and his or her family when such a mistake occurs and causes patient harm. Physicians are required by their own code of ethics to report medical mistakes even if such admission exposes them to liability. Since virtually no physician reports such errors now, the force of law should back up this common sense ethical requirement.
5. Change New York State 's medical malpractice statute of limitations. Currently, injured patients must make a legal claim against the responsible physician or hospital within two and one-half years of the date the injury occurred. There are three exceptions (see above). If a diagnostic mistake is made - such as a misdiagnosis of a tumor - and the patient doesn't find out until years later, New York law could block any legal action against the physician. Policymakers should allow injured patients the same rights as those exposed to toxic substances - an opportunity to commence a legal action within one year of the date that they find out about the medical mistake.

For a copy of the entire report e-mail a request to medconsumers@earthlink.net

For information on national consumer advocate organization's efforts to oppose tort reform click here