Liability insurance crisis hits breaking point in W.Va., Pa.
Office closures are avoided in Pennsylvania, but some
West Virginia doctors start 2003 taking 30-day leaves of absence.
Tanya Albert, AMNews staff. Jan.
20, 2003. Additional information
Before the ball dropped in Times Square New Year's Eve,
medical liability insurance was shaping up to be an even more pressing
topic for physicians and their patients in 2003 than it was in 2002. And
so far, the new year seems to be playing out that way.
Surgeons in Wheeling, W.Va., took 30-day leaves of absence from
hospitals starting Jan. 1. Pennsylvania's governor-elect helped avert
office closures there by making legislative promises, but physicians'
ability to continue to practice hinges on what lawmakers do in the coming
Nearly two dozen state legislatures expect to consider tort reform
bills aimed at easing problems with the availability and affordability of
medical liability insurance.
And Congress -- now with a Republican-controlled Senate led by a
physician -- plans to debate tort reform at the national level again. The
House passed a measure last year that included a $250,000 cap on
noneconomic damages, but the Senate never took up the subject.
"The AMA believes this issue will be discussed early in the new
Congress because the crisis continues to get worse," said American Medical
Association President-elect Donald J. Palmisano, MD. "The AMA is concerned
that patients will continue to lose access to care unless the broken
liability system is fixed now."
Medical liability problems have been brewing for two years in some
states. While federal lawmakers have grappled with the issue, some states
have already sprung into action to address problems, and more are expected
to pass legislation this year.
Nearly two dozen states expect to consider tort reform bills in
Last year, Nevada's only level 1 trauma center closed for 10 days
because physicians there had problems obtaining affordable insurance.
Nevada's Legislature met in special session and passed tort reform.
Mississippi's Legislature similarly called a special session last year and
passed tort reform measures because many pregnant women were having
difficulty finding obstetricians.
Lawmakers in Mississippi, Nevada, Ohio and Pennsylvania will likely
continue to work to strengthen the tort reform measures they passed last
year. Arkansas, Connecticut, Florida, Maine, Massachusetts, Missouri, New
Hampshire, New Jersey, New York, Texas, Washington, West Virginia and
Wyoming are among the states where lawmakers are expected to consider tort
Physicians and insurance companies are pushing for caps on pain and
suffering awards and other reforms because they believe it will help
stabilize insurance rates. Trial lawyers are arguing against the reforms,
saying doctors won't see lower premiums. Instead, trial attorneys argue,
states need to regulate the insurance industry more closely to prevent
spikes in insurance rates. But as lawmakers decide what they'll do, more
crises are coming to a head.
Pennsylvania Gov.-elect Edward G. Rendell helped prevent dozens of
doctors in the Scranton area from closing their practices by promising to
ask the Legislature to provide immediate financial relief on medical
liability insurance and long-term solutions to keep premiums affordable.
Rendell said he would ask the Legislature to eliminate the 2003 MCare
premium -- money that Pennsylvania physicians pay into a state
injured-patient compensation fund -- for obstetricians, orthopedic
surgeons, neurosurgeons and general surgeons. He's calling for a 50%
discount for all other physicians. As a more long-term solution, Rendell
said he would ask lawmakers to require that an independent physician's
certificate of merit be attached to medical malpractice lawsuits before
they could be filed.
Scranton urologist Jerald Gilbert, MD, said the plan is a stopgap and a
good-faith offer to physicians. The 14-physician group he is part of,
Delta Medix, had been preparing to stop seeing patients after Jan. 1, but
has decided to stay open. "It's not like we are ecstatic here," Dr.
Gilbert said. "We need long-term changes to happen. The fight is not
Last year's tort reform law didn't stop physicians from leaving
Pennsylvania or scaling back their practices.
"We are reminded that the crisis still exists," Pennsylvania Medical
Society President Edward H. Dench Jr., MD, said. "Long-term solutions must
be developed to avoid future access problems that threaten the
But West Virginia wasn't as successful as Pennsylvania in preventing
The Wheeling surgeons' leaves of absence have forced transfers of many
patients to facilities in Ohio and Pennsylvania and elsewhere in West
Virginia. At press time, surgeons were still on leave, treating only
patients who might not survive a transfer.
"It was the hardest decision I ever made in my life," said Gregory
Saracco, MD, a general and trauma surgeon in Wheeling who is on leave.
"But it's the right thing to do for patient care. The medical care system
... here is crumbling, and if we don't do anything, it is going to get
Before the Wheeling surgeons took their leaves, the area had already
lost all three of its neurosurgeons and one-third of its general surgeons.
West Virginia physicians have had trouble getting affordable insurance
-- or any insurance at all -- for two years. In addition to rising rates,
some physicians have also been forced to pay hundreds of thousands of
dollars in tail coverage.
"It was only after we exhausted every option that I decided to take a
leave of absence," said Wheeling surgeon Robert Zaleski, MD. "My
alternative to a leave of absence is packing up and moving to another
Wheeling physicians differ on what it will take for them to return to
the hospitals. But most want to see some type of tort reform.
At press time, West Virginia Gov. Bob Wise was set to unveil his plan
in his Jan. 8 state-of-the-state address. He would not share details with
physicians, the media or others before then. But the West Virginia State
Medical Assn. had its list of key tort reform elements, which includes: A
$250,000 cap on noneconomic damages adjusted annually for inflation;
periodic payments for future damages of more than $100,000; limits on
attorney fees; and tougher expert witness standards.
"I am very encouraged our system will be fixed because we're at the end
of the road now," Dr. Saracco said. "Something will come out of the
Legislature this year. ... We need help."
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Tort reform on tap
Massachusetts The Massachusetts Medical Society wants
lawmakers to eliminate juries' right to waive a $500,000 noneconomic
damages cap, to hold physicians responsible for only their percentage of
the damages, to require that experts are certified in the same specialty
as the defendant physician, and to institute other reforms.
Pennsylvania Gov.-elect Edward G. Rendell plans to send
legislation to the General Assembly that would eliminate payments into
the state's catastrophic injury fund for some physicians and cut the
payments in half for others.
Texas The Texas Medical Assn. is asking the Legislature to
pass a $250,000 cap on noneconomic damages, limits on the amount
plaintiffs' attorneys can collect, periodic payment of damages or future
patient medical costs, and other changes.
West Virginia The West Virginia State Medical Assn. is calling
for a $250,000 cap on noneconomic damages that would be adjusted for
inflation each year, tougher medical expert witness standards and other
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Copyright 2003 American Medical Association. All