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.

By 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 months.

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.

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 reform.

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.

Taking action

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 over."

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 patient-doctor relationship."

But West Virginia wasn't as successful as Pennsylvania in preventing physician protests.

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 worse."

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 state."

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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