ABA Connection

The Med-Mal Divide

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More physicians like Dan F. Kopen can expect to find themselves at the defense table as doctors and lawyers continue to wage a political, legal and cultural war over who to blame for the medical malpractice insurance crisis.

A general surgeon, Kopen is out the door and on his way to work by 5:30 a.m., with no chance to read the morning newspaper. On Sept. 15, 1997, it was no different for Kopen, who lives and practices in Wilkes Barre, Pa. So it’s little surprise that almost everyone in town seemed to know before Kopen did that a former patient had filed a malpractice lawsuit against him.

“I found out from a lawyer friend who read it in the paper,” Kopen recalls. “He said, ‘Oh, I see you’ve been sued.’ ”

Kopen had removed the patient’s gallbladder four years earlier. Now, the patient–a man in his 40s at the time–was complaining that Kopen had failed to detect his colon cancer.

The case was eventually dropped, but, Kopen says, the publicity caused referrals to nosedive for the lucrative intestinal and colonic procedures he hoped would become a major part of his practice. “Up until this day,” he says, “I’ve never really recovered.”

There will be more litigants like Dan Ault, too. The young Chicago father woke up on the plaintiff’s side of a medical malpractice nightmare in 1998 after physicians at a suburban hospital botched his daughter’s delivery. The procedure damaged the girl’s diaphragm and nerves in her upper body. Ault knew something was wrong when his daughter was whisked from the delivery room to the intensive care unit.

“We spent the next 10 months at the hospital,” says Ault, a real estate investment adviser. “At that point, you’re really thrown into a twilight zone. It’s supposed to be a happy, joyous day in your life, and you find out you have an injured baby. You don’t know what to think.”

Cycle of Blame

Physicians and plaintiff lawyers alike recite scores of similar episodes as the malpractice debate shows no signs of calming and each side continues to shift the responsibility away from itself.

In many ways it’s an old story that repeats itself every 10 years or so when malpractice insurance premiums spike. Doctors say greedy plaintiffs lawyers working for contingency fees have driven the cost of insurance so high that it threatens their livelihood. Plaintiffs lawyers say they are out to do justice for injured clients who otherwise would have no recourse. They say greedy insurance companies are to blame. Less than a week into 2005, President Bush and Senate Majority Leader Bill Frist, R Tenn., revved up the effort to make good on campaign promises to cap noneconomic damages for pain and suffering at $250,000.

Yet, behind the broken lives, dollar signs and talk of caps on damages and lawyer fees lies a cultural chasm between the two professions. New laws alone may not help. “This is a particularly difficult problem for legislators to deal with,” says Arthur M. Simon, a lawyer for the University of Miami medical school and former lobbyist for the insurance industry. “This is an issue that really raises the core values of the affected interest groups.”

Mildly put, many doctors mistrust the American adversarial system of justice. “In medicine, you train to find the answer, to find the science, the germ that’s causing the disease,” says vascular surgeon Donald J. Palmisano, past president of the American Medical Association and the organization’s main lobbyist. He also holds a J.D. “In the adversarial system, physicians believe they’re just getting the best presentation instead of getting to the truth.”

But for as much as they fear the justice system, many doctors just plain despise lawyers. And they don’t discriminate, as Florida State Sen. Steven A. Geller knows from experience.

“I’m a zoning and land use lawyer, and I get that all the time,” says Geller, a Democrat from Broward County. “They just hate lawyers.”

A member of the legislature’s Judiciary Committee, Geller says he ran into a closed door when he asked the Florida Medical Association to support a bill that would create a malpractice insurance fund he estimates would cut doctors’ premiums by as much as 25 percent.

“They have told me that they want the system to fail, because they believe they can come up with a new system that will treat doctors better,” Geller says.

To that end, the AMA in January quietly rolled out model state legislation for a “health court” system that could radically change med-mal litigation. The proposal includes pretrial screening panels–with physicians in the majority–that would make factual determinations as to whether the provider “deviated from the applicable standard of care,” whether the provider’s acts or omissions caused the patient’s injury, and whether the patient shares equal or greater blame for any negligence. The panel’s conclusions would be admissible in a later trial before a health court.

The AMA House of Delegates had endorsed the concept in late 2003. The resolution called for “an alternative judicial model for addressing medical liability claims based on special medical courts that are composed of judges trained in medical standards that could render more accurate decisions regarding whether malpractice has actually occurred and, if so, render a judgment as to the amount of monetary damages to be awarded.” The association’s Division of State Legislation included the screening component in a legislative template, found in a members only section of the AMA Web site.

At the federal level, Frist latched onto the idea in a little publicized speech to the National Press Club in July 2004. Frist, a heart surgeon, declared that physicians ultimately want “an expert medical court system with transparent decisions, limits on punitive damages and scheduled compensatory damages to provide rapid relief to truly injured patients (instead of trial lawyers) and hold negligent doctors accountable.”

Few Med-Mal Claims on Dockets

Physician negligence cases, by most estimates, account for only a small fraction of injury claims filed in the courts. Indeed, an ABA task force on contingency fees said that only about 2 percent of victims of medical malpractice even file claims. The remaining incidents involving malpractice typically either go undetected by the patients or result in no claim because the potential damages are too small to justify the cost of bringing a case.

Moreover, the task force reported in September 2004 that defendants prevail in 75 percent of the cases taken to trial. That compares with a 50 percent success rate in other tort actions. The report is at www.abanet.org/tips/ home.html.

To maintain balance, the task force–convened by the Tort Trial and Insurance Practice Section–was composed of med mal practitioners, academics, representatives from the insurance industry and even lawyers from other practice areas. That included chair Steven B. Lesser of Fort Lauderdale, Fla., who practices construction law and commercial litigation.

“I don’t do any medical malpractice and never have,” he says. “All my family members are doctors, and they’d probably string me up.”

The Florida Medical Association, however, declined to make its case to the TIPS panel. Association general counsel John N. Knight failed to return repeated telephone calls seeking comment.

But a federalized med mal regime may be a moot point anyway. The Republican controlled House has passed legislation to clamp down on med mal claims seven times since 1995. Each time, however, the measures died after Senate Republicans failed to muster enough support to bring them to a vote. Even though the Republicans increased their Senate majority to 55 in the November elections, they remain five votes short of the 60 needed to stop a Democratic filibuster.

Even lawyers who represent physicians and medical groups predict that any major action will occur in the states. “The legislative solution always has been in the venue of the states,” says Chicago defense lawyer Miles J. Zaremski, chair of the ABA Standing Committee on Medical Professional Liability. “That’s where it should continue.” Zaremski joins others who say the insurance industry needs to become part of any workable solution. “It’s too easy to say, ‘Blame it all on the lawyers.’ ”

But insurance reform at any level also is unlikely. That’s because 60 percent of the nation’s physicians are covered by companies either owned by doctors or managed by doctors, according to the Physician Insurers Association of America, the trade group for those carriers. And state medical associations routinely receive endorsement fees from such companies in exchange for promoting the companies’ policies to their members. So insurance reform likely is dead on arrival in most states. Florida State Sen. Geller’s proposed pool has withered on the vine twice before.

Testimony before the ABA TIPS task force showed that only about 60 percent of Florida physicians are insured. In part, Geller’s bill would spread the risk and reduce premiums by requiring all doctors to purchase insurance as a condition of licensure.

“We don’t support it because we have no studies that show that the rates will be lower,” says Florida Medical Association spokeswoman Lisette Mariner. Geller had considered withdrawing his bill, but instead decided to let it die in committee as it has in years past. Florida docs’ ears do perk up at the mention of special health courts. A few states have toyed with the idea, though none has gone into operation. But the AMA’s model legislation and Frist’s endorsement could bring the issue front and center. For the moment, however, AMA spokesman Palmisano expects medical courts to sit on the back burner as doctors continue to fight for what they consider a more urgent need for limits on damages and lawyer fees “to stop the bleeding.”

The AMA’s suggested legislation rests on the premise that “under the current system awards often are based on the level of injury, not the incidence of malpractice.” As a result, distrusting physicians avoid lawsuits by practicing defensive medicine, ordering more tests and other procedures or sending patients elsewhere at a cost of “billions of dollars.”

The model legislation also asserts that “the current judicial system is ill equipped to handle the complex issues often involved in medical liability cases.” It calls for judges specially trained in medical legal issues who have access to court appointed experts “to ensure the accuracy of decisions rendered by judges and juries.” The AMA recommends judges undergo classroom medical training and internships in which they shadow physicians at work.

“To enhance the political viability of this legislation, states should maintain their existing process of judicial selection either by appointment or election,” the AMA suggests. The model mentions juries, though it doesn’t specify their duties or judges’ responsibilities for fact finding. Indeed, Palmisano concedes, it may not be a bad idea to do away with the jury system further down the road.

“Jurors can determine fact issues,” Palmisano says. “But as far as the standard of care goes, jurors shouldn’t do that. Experts should do that.”

Short-Lived Screening Panels

While special health courts are a novel idea, screening panels have come and gone. In response to previous medical malpractice crises in the 1970s and 1980s, at least 34 states enacted laws creating screening panels, according to research compiled by the American Tort Reform Association. Participation was voluntary for some and mandatory for others. Composition and admissibility of results in later proceedings varied widely from state to state. (The ABA since 1986 has opposed screening panels as unnecessary.)

But only about a half dozen mandatory systems that include admissible results remain on the books, with the rest either struck down by courts or repealed by legislatures. The AMA model is mandatory and recommends admissible results.

The AMA panels would operate as part of a proposed Office of Health Claims Review and Resolution whose director would be appointed by the health court’s presiding judge. All cases asking more than $10,000 damages first would go through the panels, composed of three physicians and a lawyer if a doctor is the defendant. If another type of health care provider is the defendant, two of the physicians may be replaced by members of that provider’s profession. The lawyer would serve as chair and make all procedural rulings.

Claims of less than $10,000 would be handled by individual “health claims ombudsmen,” who presumably would act as mediators with the power to recommend remedies that the presiding health court judge must approve.

Proceedings before the four member panels would bear some of the hallmarks of alternative dispute resolution, where depositions are admissible regardless of the witness’s availability. Other rules of evidence wouldn’t apply, and evidence “upon which reasonable persons are accustomed to rely on in the conduct of serious affairs” may be admitted. The panel would conduct its proceedings in secret.

But a potential constitutional problem arises because the model requires the panel to issue a written opinion on whether malpractice occurred and who is at fault. That opinion would be admissible later, and panel members would be able to offer live testimony in the later proceeding. The opinions’ focus on questions of liability would mirror the ultimate factual findings that historically have been left to juries to determine. So the proposal could violate the Seventh Amendment’s right to a civil jury trial. Courts in medical malpractice cases do allow expert testimony from professional peer review boards, but jurors are instructed to give them no more weight than they would any other expert.

Robert S. Peck, president of the Center for Constitutional Litigation in Washington, D.C., worries that a panel convened under authority of state law as an arm of the court would carry undue influence with jurors. The center is a for profit law firm spun off in 2001 from the legal affairs department at the Association of Trial Lawyers of America to challenge the constitutionality of tort reform efforts, including medical malpractice. Moreover, expert testimony is supposed to do nothing more than make complex matters easier for jurors to understand.

It should not decide the ultimate issues, says Peck. “It’s clearly trying to take away some of the fact finding authority of juries,” he says. Well, not all the fact finding, responds Palmisano: “The panel function is to determine the standard of care. It is not to determine issues of fact, such as he said, she said. Jurors are not expert enough to determine what the standard of care is.”

No Consensus

Courts have had mixed reactions to mandatory screening with admissible results. In Palmisano’s home state of Louisiana, the supreme court rejected a challenge to a mandatory scheme primarily on equal protection and due process grounds. Everett v. Goldman, 359 So. 2d 1256 (1978).

The system before the court was tied to a statute that capped damages for doctors who showed proof of financial responsibility to the state insurance commissioner. Doctors who did could invoke the panel requirement; other doctors could not. Despite initial resistance, Palmisano says Louisiana plaintiffs lawyers have come to like the system because it reduces their costs for retaining experts.

Not so in Florida, where the state supreme court declared unconstitutional another scheme because a time limit on panel proceedings violated federal and state due process requirements by restricting access to the courts. Aldana v. Holub, 381 So. 2d 231 (1980). A panel referee had refused to extend the limit after declaring a mistrial because of “repeated inflammatory statements by the physician member” that showed bias against the plaintiff.

The case hasn’t put an end to efforts to overhaul the system in Florida. Still, Mariner, the state medical association spokeswoman, says her organization’s leadership hasn’t formally examined alternatives to the traditional court system.

“If it’s done the right way, it’s a great idea,” Mariner says. “Unfortunately, in Florida, it would require a constitutional amendment.”

But the group had no trouble backing a state constitutional amendment, approved by voters in November, that reduces lawyer contingency fees in med mal cases. The doctors claimed lower contingency fees would put more money in plaintiffs’ pockets, an assertion that plaintiffs lawyers disputed.

Nor did the medical association have a problem trying to bypass The Florida Bar and directly moving for the state supreme court to amend the Rules of Professional Conduct to reflect the outcome at the ballot box. The court declined the invitation without comment.

But when the justices in July reluctantly approved the ballot language, four of the seven expressed concern that the amendment would override the state constitution’s guarantee of access to the courts. The rule change urged by the doctors in the supreme court likely would have gone far toward heading off an expected federal constitutional challenge on similar grounds. But Mariner says the doctors wanted to do nothing more than alert lawyers to the fee cap.

Florida plaintiffs lawyers, by the way, also lost a post election round when a Tallahassee trial judge temporarily enjoined enforcement of a separate amendment they supported and voters also approved in November. The measure would yank medical licenses from repeat malpractice offenders. The court is expected to revisit the issue after the spring legislative session ends to determine whether lawmakers enact satisfactory enabling legislation to clarify a host of policy and procedural questions left open by the amendment as it appeared on the ballot.

Cultural Chasm

As doctors play lawyer and the debate gets nastier, the professional cultural gulf could deepen. The TIPS task force report identified the gap between doctors and lawyers as a major stumbling block to resolution, citing ethical differences over contingency fees. The task force concluded that lawyer contingency fees are essential to preserve injured patients’ right to seek redress in the courts.

Medical ethics, however, prohibit doctors from working for contingency fees. After all, adjusting a medical bill based on the outcome success just leaves a bad taste. In addition, the TIPS panel reported, “Physicians have no need for or appreciation of contingent fees” because health insurance or the taxpayers–not patients–usually pay their bills.

On the other hand, doctors say lawyers don’t understand that they are at the mercy of private health insurance companies and government programs. Some politicians also say any increase in Medicare and Medicaid reimbursements must be tied to damage limits in malpractice litigation.

“Physicians are locked into a system that has price fixing by the government in Medicare,” Palmisano says, “and price fixing by the government in Medicaid.” Semantics also plays a role. For one, the doctors and their political supporters, from President Bush on down, assail lawyers for filing what they describe as frivolous malpractice cases. Plaintiffs lawyers say that’s just code for big judgments because cases courts consider frivolous rarely survive motions to dismiss or summary judgment.

Bush says a $250,000 cap on noneconomic damages will do much to ease the problem. “It’s not the frivolous lawsuit that would be affected by this,” says Thomas A. Demetrio, who represents Chicago father Ault. “So his definition of frivolous means the serious lawsuit, the important lawsuit.”

Demetrio also served on the TIPS task force. He says his firm must initially front about $250,000 just to pay experts and other expenses associated with a typical malpractice case.

Though the ABA has long opposed federalizing medical malpractice law, and caps on damages and fees, the association’s policy also says doctors and lawyers should “cooperate in seeking common solutions to these problems and should avoid any efforts to polarize the discussion of these problems, which would serve neither the public interest nor the interests of either profession.”

But some doctors and politicians consider the ABA to be part of the problem, as Republican Joel White, House Ways and Means Committee staff director, demonstrated in early December when he appeared at the ABA Health Law Section’s annual summit in Arlington, Va.

“I feel kind of like Daniel walking into the lions’ den,” White remarked. “The silence.” The silence didn’t deter White from warning of “a new paradigm” on the horizon: federal malpractice reform. Nor was he shy about challenging the ABA.

“Are you going to fight malpractice reform? Are you going to fight physicians?” he asked. “You as an organization need to decide where to lay your priorities.”

Lingering Effects

With no end in sight to the bickering, more defendants like Kopen and plaintiffs like Ault are waiting.

Kopen’s case went away. He and his lawyer say the other side failed to produce an expert to support the patient’s claim of a missed diagnosis. The patient’s lawyer says his client’s tumor was successfully treated. With the cancer gone, so was the prospect of significant damages to make the case worth pursuing, the opposing lawyer says.

But more potential defendants will learn how it feels to be sued.

“It gnaws at you,” Kopen says. “You’re angry. You’re confused. You’re not sure how it’s going to affect you or your practice. You have other emotions that you can’t even put into words. … All you need is a bad outcome. You don’t need malpractice to get a lawsuit.” Ault’s case ended in a $20 million settlement, reached with the hospital just before it was to go to the jury. But his daughter, now 6, will need constant care for the rest of her life. For example, despite nerve grafting procedures, the girl still can’t raise her arms high enough to brace herself should she fall. “Her room is basically a hospital room,” Ault says.

And more potential plaintiffs will learn what it’s like to fall victim to medical negligence. “You live and die with your child with every breath you take every day,” Ault says. “To have that arbitrarily capped is just unconscionable. It’s extremely frustrating for us as parents to see everyone pointing fingers and talking about profit margins. … This isn’t someone painting a car and not doing a good job. We’re talking about human lives here.”

John Gibeaut is a senior writer for the ABA Journal.

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