Med-Mal:  "It's a Crisis Now"

By Mitch Traphagen
mitch@observernews.net

SUN CITY CENTER - Mike (not his real name) is a 39-year-old in the peak of health. Seven months ago, however, he began experiencing pain in his lower back.

Two weeks ago the pain became so severe that he began to have trouble walking. His regular physician suggested that he see a neurosurgeon.

Last week he could no longer walk. He tried making an appointment with a neurosurgeon only to find out that there was at least a 3 month wait. After repeatedly calling he finally found one that would see him in three weeks. Three weeks for an otherwise healthy 39-year-old to be bedridden. He couldn't work, he couldn't spend time with his family.

The pain became so severe that he made another appointment with his regular physician, hoping for anything. His doctor took one look and told him to go to the nearest emergency room.

Mike was admitted at South Bay Hospital at the end of December. On New Year's Day, a South Bay neurosurgeon assembled a team and they operated on Mike's back.

Less than a week later Mike was back at work, he was overjoyed with the care he received at South Bay.

A happy ending to a simple story? Not really. Mike's neurosurgeon didn't have malpractice insurance. His doctor, highly trained, highly competent, could not get insurance coverage. He has never had a malpractice claim.

The doctor was only able to operate because of his willingness to risk his own personal well-being for the good of his patient and because South Bay CEO Alan Levine made an exception to a hospital rule requiring malpractice insurance.

"We're small," said Levine. "My bylaws require physicians to have malpractice insurance. We granted the neurosurgeons an exception because had we not done that, Mike and others like him would be transferred inter-emergency. That's how close we are to the edge."

Levine didn't have much choice. If no exception had been made, there would not be a neurosurgeon at South Bay.

A similar situation developed with the hospital's vascular surgeons. Two surgeons ultimately left the state. According to Levine, "The remaining surgeon opted to stay even though it's costing him a lot more money. If someone had a ruptured appendix or something where time is of the essence, we wouldn't have coverage if they had all left. Thank God he opted to stay."

"We are going through a period where our ability to administer health care is deteriorating," said South Bay surgeon Dr. Eli Lerner. "This is creating a tremendous crisis, especially in a population like this where people really require good accessibility to health care. For many it's beyond the realm to think that they can get into a car or an ambulance to go to Brandon or Tampa."

"In order to stay in practice we have to have some sort of arrangement for coverage because our families are at risk," said Lerner. The other side is that we can't pass this on to our patients because we are basically a regulated community."

The regulation that Lerner was referring to is Medicare. According to Levine, rather than recognizing the increasing costs of staying in practice, Medicare has actually cut doctor reimbursements by 15 percent over the past two years. This year it may cut reimbursement by another four percent.

"We're sort of caught in a tight squeeze," said Lerner. "The old concept of the rich doctor driving around in a Cadillac, it's never going to happen."

That concept, of course, is part of the problem. Juries appear to be quick to award huge amounts of money in malpractice suits, often with questionable evidence of negligence.

A recent trial in Tampa, however, may signal a coming change.

A patient had a very bad outcome to a surgery and was seeking a large quantity of money, much of which was for pain and suffering. Even though the result was horrible, even disfiguring, the doctor did not do anything wrong. He could not have foreseen the horrible result, it was beyond his control. As a result the jury found the doctor not negligent.

It was a sad situation but the doctor could not be expected to pay for something that he could not control.

"It's rare for a jury to find a doctor not negligent," said Levine. "Insurance companies are terrified of juries."

Even so, there was a price to pay. The trial lasted for five days and the doctor spent that time in a courtroom rather than seeing his patients. He also likely spent many thousands of dollars on his defense.

"There's the concept out there of the big trophy, the big prize," said Lerner. "We can't afford to find a doctor liable for $10 million for non-economic (pain and suffering) damages. We also need to elevate the bar of what represents a litigious situation. If a patient has a bad outcome and the doctor did nothing wrong, that should not go to a jury trial."

"I've never heard anyone say that we want to block legitimate cases from going to court," added Levine. "If there is a doctor that is negligent, that doctor should pay the price for it both in terms of their license and from a standpoint of compensating the victim."

Whenever the discussion of tort reform comes up the finger is quickly pointed at the trial attorneys. The "sleazy lawyers" are to blame many say. The reality is, of course, that behind every "sleazy lawyer" is a sleazy client. Attorneys don't actually sue anyone, attorney's clients sue people. The attorneys are simply doing their job representing their clients to the greatest extent.

That greatest extent, however, has a price. Doctors are leaving the state of Florida, which has no limit on malpractice awards, for states that do have limits.

"Our chief of the medical staff, Dr. Palomino, is no longer here," said Levine. "He's been a doctor for 17 years, has never been sued, he's never even had a complaint filed against him. He participated in indigent health care, taking care of poor people without insurance. He has never turned a patient away. He's sitting at home today because he couldn't get insurance. He has four girls at home and he couldn't take the risk, one lawsuit could wipe him out."

Dr. Lerner was close to the same fate. He finally found coverage, with a huge premium increase, on Dec. 30.

"Two years ago we had seven guys in general surgery," said Lerner. "Today we have two surgeons and one part-time surgeon."

"According to the Florida Department of Insurance there were 200 claims that cost $19 million in 1980," Levine said. "In 2000 it went up to 800 claims at a cost of $220 million. Some insurance companies are paying out $1.40 for every dollar of premium they take in."

As such, the insurance companies are following the doctors out of the state making it all the more difficult for doctors to obtain coverage.

It is easy to point the finger of blame, perhaps at the trial attorneys or the insurance companies or even the doctors. It is much more difficult to accept responsibility. The responsibility, of course, lies with the public. Doctors are human and they do not have control over nature. Attorneys will always do their best for their clients, they will always seek the greatest award. It is the patients that have to accept that sometimes not everything in life is perfect, not everything bad is the fault of someone else. Frivolous lawsuits may be detracting from legitimate claims and those victims, along with the public, are paying the price.

"There are so many moving parts to the system," said Levine. "If a nurse forgets to do something, the doctor gets sued. If a neurosurgeon doesn't have insurance, the referring doctor will get sued."

Although not directly sponsored by South Bay Hospital, the staff doctors have decided to do something about the situation. On Thursday, Jan. 9 at 10 a.m. some of the doctors, patients and the president of the Florida Medical Association will hold a rally on the lawn of the hospital to inform people of the crisis as they see it. According to Lerner, "The point is to explain the problem and tell people what they can do about the situation. We need people to start calling and writing letters to their legislators. People need to start speaking up."

"If they (the legislators) don't do something this spring, we're going to have a crisis," said Levine.

"I think the truth is that we have a crisis right now," said Lerner.

Recently doctors in West Virginia and Pennsylvania have made national news by essentially going on strike over this issue. No one at South Bay is suggesting that course of action.

"The thing that keeps us working," Lerner said, "is that we really feel that we are doctors first and that this is what we do. We have sort of signed a contract with society. The problem is that the contract is being abrogated by a third party and we're being squeezed in the center. Unless we develop some form of tort reform over the next year, we are really going to see terrible problems."