January saw an outbreak of an unfamiliar
phenomenon in the U.S. - strikes by doctors.
While such strikes are commonplace in countries with nationalized
health systems, in the U.S. they have been relatively rare. But
unlike their foreign counterparts, U.S. doctors aren't striking
over pay or working conditions. Rather, physicians in West Virginia,
New Jersey and Florida engaged in work stoppages to pressure their
lawmakers to curb runaway lawsuits that are making medical malpractice
Nor are these states the only ones affected.
Pennsylvania just averted, at least for now, a similar doctor's
strike, while last summer a trauma center in Las Vegas, Nevada
was forced to temporarily close when its surgeons, unable any
longer to afford their malpractice insurance, walked off the job.
In addition to these five states, the
American Medical Association has identified seven others currently
facing a medical liability crisis: Georgia, Mississippi, New York,
Ohio, Oregon, Texas and Washington.
Simply put, in parts of the country the medical liability crisis
is turning into a health care access crisis. Without doctors to
provide treatment, even those who can pay for care can't get it.
Indeed, in Mississippi it is now almost impossible to find a doctor
to deliver a baby anywhere outside of the largest cities.
The crisis is being driven by both the increasing number of lawsuits
and the growing size of awards for non-economic damages - that
is additional awards on top of those for tangible losses such
as the plaintiff's cost of care and lost income. Yet, the system
offers no assurance that those who actually are injured will be
The good news is that some states don't
have this problem. The most notable is California, which 25 years
ago passed a successful tort reform law that, among other things,
caps non-economic damages at $250,000 but doesn't limit awards
for tangible losses. In California malpractice premiums are comparatively
affordable, doctors are staying in the state, and patients continue
to have access to quality care.
Comparisons with California show the difference
that tort reform makes. In Florida, malpractice insurance for
an obstetrician costs between $143,000 and $203,000 a year. Given
that the average obstetrician delivers about 100 babies a year,
that adds about $1,400 to $2,000 to the cost of delivering each
newborn. In contrast, malpractice insurance premiums for OB's
in California are $23,000 to $72,000 a year, or about $200 to
$700 per newborn.1
But these aren't the only costs of the
metastasizing medical litigation cancer. There are even bigger
economic and social costs.
To guard against lawsuits doctors increasingly
practice "defensive medicine" - that is, prescribing
tests, procedures and drugs that they don't believe are medically
necessary but that enable them to say in court that they did everything
possible for the patient. One study estimates this adds $20-$40
billion a year just to the cost of federal health care programs
such as Medicare and Medicaid. Furthermore, unnecessary treatments
pose additional risks to patients and contribute to problems like
the growing antibiotic resistance of infectious bacteria, which
Another effect is that doctors who are
retired or not actively practicing are prevented from providing
charity care as part-time volunteers in clinics, as many used
to do, because neither they nor the sponsoring organizations can
afford the necessary malpractice insurance.
Finally, instead of encouraging doctors
and other health professionals to identify and correct problems
in the health care system, the threat of lawsuits instead encourages
them to ignore or hide problems - making medicine less, not more,
safe for everyone.
In short, the medical liability crisis
no longer affects just doctors - it affects us all.
Edmund F. Haislmaier is a member
of the board of directors of the National Center for Public Policy
Research and a Washington, D.C.-based health policy consultant.
1 For more information see: Confronting the New Health
Care Crisis: Improving Health Care Quality and Lowering Costs
By Fixing Our Medical Liability System, Office of the Assistant
Secretary for Planning and Evaluation, U.S. Department of Health
and Human Services, Washington, D.C., July 25, 2002, available
online at: http://aspe.hhs.gov/daltcp/reports/litrefm.htm.