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Medical Malpractice Insurance Roundtable: Doctors Prescribe Remedies for Crisis
From Our June Print EditionYOUNGSTOWN, Ohio -- The Business Journal is publishing a three-part roundtable discussion on the problem of rising medical malpractice insurance rates. The first part was published in our June edition (READ TEXT), the second part -- which follows below -- was published in our MidJune edition.The first two parts of the roundtable discussion, which was conducted April 16 at the Holiday Inn - Boardman, focused on the problem as seen from the perspective of physicians. Participating in that discussion were Ann Womer Benjamin, director of the Ohio Department of Insurance; state Rep. Charles Blasdel, R-1, East Liverpool; Marc S. Saunders, general surgeon at St. Joseph Health Center, Warren, and president of the Mahoning County Medical Society; Thomas Kaminiski, diagnostic radiologist at Trumbull Memorial Hospital and president of the Trumbull County Medical Society; Dean Economous, family practitioner in Salem and president of the Columbiana County Medical Society; Ed Hassay, vice president at Sky Insurance Co. who handles professional liability policies; Clifford Waldman, chief medical officer at Humility of Mary Health Partners; Howard Rohleder, president and CEO, Salem Community Hospital; attorney Patricia Jacobson, general counsel for Forum Health; Andrea Wood, publisher of The Business Journal, and Dennis LaRue, copy editor of The Business Journal. LaRue led the questioning, moderated the discussion and edited the transcript prepared by Tracey L. Berarducci, certified stenotype reporter at David R. Burton & Associates.The third of the roundtable discussion, a rebuttal consisting of a panel of attorneys and a retired judge, will be published in the MidJune print edition of The Business Journal and also will be published online. The medical community would agree that some malpractice lawsuits have merit.Which leads to the question, How do physicians and surgeons police their own ranks? How many incompetent physicians, surgeons and nurses have the medical societies in the three counties recommended for either suspension or expulsion from practice since 1994, since 1999, and in 2003?Marc S. Saunders D.O., general surgeon at St. Joseph Health Center, Warren; president of the Mahoning County Medical Society:I don't have the numbers. A state medical board publication comes out several times a year that names doctors who have problems in any number of areas.Within the hospital systems are self-policing systems such as morbidity, mortality conferences. There are procedure-review committees. There are quality-assurance committees. There are all sorts of things within the hospitals to police themselves.... Even when it's found I've done nothing wrong my [medical malpractice insurance] rates go up.I was named in two lawsuits. One was completely dropped; it's a dead issue. The other went to court. That case started with nine physicians; it ended up with two physicians in the hospital. And the physicians and the hospital won the case.I have no letters, no lawsuits, nothing. Still my rates went up. The reason is we're all in a risk pool in Ohio. The problem is that we need to stop the filings before they're filed. Once they're filed, a lot of damage is done.Many measures have been suggested. Review committees, as I understand it, would review the cases after they're filed [to determine merit]. That doesn't help us, because once they're filed, we, as a risk pool, have lost.We need to find a way to stop the filings of nonmeritorious suits before they happen.Edward Hassay, vice president, professional liability, Sky Insurance Co., Youngstown: Once you are even are named in a lawsuit as a potential defendant -- guilty or not -- that will haunt you for 10 years [if a doctor is covered by one of the two largest insurers in Ohio].Every time we take an application, they want to know your losses. They want the prior 10 years. They'll discuss and review your application only when that's in their file.Consequently, we see specialists such as radiologists -- who must be in a hospital emergency room -- you have to have a pathologist for the work they do. If you've got a bad wound, you've got to have the infectious-disease guy come in. So these people are at everybody's mercy.They're there for all the patients all the time. Historically, they get named in a lot of the suits.To the extent that two [major medical malpractice insurance] carriers right now don't submit radiology, don't submit ER, they are not going to write [policies for] these specialties in Ohio.Saunders: If you go by that information, the bad doctors aren't getting named. It's the good doctors because they're on the charts more.Hassay: I was just meeting yesterday with one of the major carriers in the country, not just Ohio. One-third of their business is written in this sector of Ohio. One-third of it from Ohio business. They don't write any more [malpractice] premiums anywhere in Ohio although they wrote one-third of those in Mahoning County [because] we have three times the losses of the rest of this [region]. Ann Womer Benjamin, director, Ohio Department of Insurance: Mr. Hassay addressed a very important point from the regulator's perspective. We often don't get this information from the companies that we regulate. We need that information to help handle this volatile market.Clifford Waldman, chief medical officer, Humility of Mary Health Partners, Youngstown: Coming from the hospital side, you asked what we do about bad doctors. First, it has to be understood that the practice of medicine is not an exact science. It's not all black-and-white, that you're good or bad.There are various approaches to care. We are getting better evidence to support what the appropriate standards of care are. But not everything is clearly defined. And not every case follows the textbook presentation.Hospitals take issuing credentials very seriously in extending privileges to physicians. We look at outcomes of care; when we have bad outcomes, we review those. We have removed physicians from our medical staff. I don't want to go into numbers, but there have been a significant number of doctors in this community who have been removed from the medical staffs of the hospitals and have been reported to the National Practitioner Data Bank. Some lost their medical licenses to practice in Ohio.When we find a significant variation from the standard of care, we address that. On the other hand, we take very seriously the right of a physician to practice, that it is their livelihood. We have to [adhere to] a high standard of evidence in documenting that somebody is not practicing effectively.It's different standard than what seems to [govern] malpractice cases. We look for very solid evidence before we remove somebody's source of livelihood. It's not a simple, "You're good," "You're bad, so you're not going to practice anymore."Howard Rohleder, president and chief executive officer, Salem Community Hospital: When the peer review is done among physicians in the hospital, it's done on a scientific basis. In the court system there's an adversarial, argumentative basis in presenting cases that may or may not be true science.Waldman, HMHP: The whole malpractice situation hinders our ability to investigate and clearly address the problems of medical errors and medical malpractice. Because people are afraid to come forward and speak.Rohleder, Salem Hospital: That's absolutely true.Waldman: We have peer-review protection to some extent. But it's constantly being challenged and gnawed away. We have to look at how we allow ourselves the ability to investigate things openly and honestly. HM has a policy that when an error occurs, or when there's a bad outcome, we openly discuss it with the patient and family. We want to know when there's a problem.Most problems that occur in the hospital are related to something being done wrong. And many bad outcomes have nothing to do with any errors or poor practice; it's simply the nature of health care.But when there is a problem, it is typically a systems issue. The problem is the court system wants to point a finger and place blame on individuals and make them pay for it, when there usually are a number of things that occur together.There's what's called the Swiss cheese model of medical errors: A lot of holes that all have to line up for the error to occur. We have to be able to identify those. The only way we can is if people are willing to report them and openly discuss them. The current malpractice situation makes it very difficult for people to do that.Pat Jacobson, senior vice president of legal services and general counsel, Forum Health, Youngstown: When we first look at whether we want to let a physician come into the community of a hospital, two big questions we have to ask are, How many lawsuits have been filed against this physician? What's the settlement record?Only in the past few years has there been a huge increase in the level of concern. That and in the number of instances of people being named and dismissed, named and dismissed. It's a constant pattern. It affects whether somebody gets in the door.Dr. Saunders:If we go by that, there won't be any radiologists. There won't be any pathologists. Waldman:Emergency rooms [will be closed for want of staff].Saunders: Infectious disease -- there won't be any of these specialists to practice.That brings us to remedies. One proposed reform is the creation of independent panels of experts who would review malpractice suits before they could be filed in court. Would someone explain how such panels would be chosen? How many members would be sit on them? How the members would be compensated and how much? Would membership be limited to licensed physicians?Thomas Kaminski, diagnostic radiologist at Trumbull Memorial Hospital; president of the Trumbull County Medical Society: A lawyer, Philip K. Howard, is a principal in an organization called Our Common Good. He's worked closely with the American Medical Association in putting forth detailed proposals to accomplish exactly what you said.Dr. Waldman is close to getting right to the crux of the problem.The whole purpose of our medical legal system is to reduce physician errors, to compensate victims of negligence.Unfortunately, our system fails on a fundamental level.Only 3% of injuries due to negligence ever result in any kind of claim while 80% of malpractice claims show no signs of any negligent injury.Not only are we not finding the negligence, we're not compensating the injuries.This comes from a government document from the Joint Economic Committee study of May 2003: "These figures suggest that our medical liability system malfunctions on a fundamental level. Our medical liability system precludes a real aggressive search for errors."What's not stated are "system errors" that are not cases of individual negligence or carelessness.Put another way, even if doctors did everything perfectly right, most of these errors would still occur.We need to foster a system of openness that allows all pertinent parties to get together to address these errors.First we need a fundamental overhaul of our whole medical liability system. Hassay, Sky Insurance: That would include fundamental reform of the attorneys' legal system as opposed to the medical liability, if you're talking insurance company versus attorneys.Benjamin, Ohio Department of Insurance: There is a bill pending in the legislature, House Bill 215 [passed by the House since the roundtable was held], that is probably going to be amended.The Medical Malpractice Commission has likewise recommended passage of a medical review process, which ideally would come before filing a lawsuit.If there was a panel to review such claims, my guess is, doctors would be, at least the majority if not all of the panel, although I think the proposal has a lawyer moderating the panel.Saunders:Correct.Benjamin: In all likelihood, that's not going to be binding. A party could still go to trial even if they lost the review.These are issues the Legislature really has to address. Some reforms that may attach to that review process include requiring that medical experts from out of state to testify come within the jurisdiction of the Ohio State Medical Board so that they could be disciplined if they did not act properly, and that they be specialists in the area they would testify about.Hassay: Would they have to present credentials to the department [before] they do that?
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