QUESTION OF THE MONTH

THE BALTIMORE SUN

Will Maryland residents have to get used to not having access to the world-class physicians and hospitals that are part of what makes living here so special? This is the question that underpins the urgency of remedying our state's medical liability insurance crisis.

The facts are clear: Liability insurance is exceedingly expensive for physicians, nurses, nursing homes and hospitals. Physicians are being forced to stop practicing medicine and consider moving to other states or retiring early, and the number of insurance companies willing to offer medical liability coverage is dwindling.

The rights of injured patients must, of course, be protected. But this can be accomplished together within the framework of the medical liability reform measures that are so important for the long-term health of the citizens of Maryland, the medical community and the hospital industry.

Laurence M. Merlis

Baltimore

The writer is president and CEO of the Greater Baltimore Medical Center.

The prognosis is grave and the chance for long-term survival is poor.

The above statements would be shocking enough if I were talking about a patient. However, I am describing the condition of our malpractice insurance system in Maryland.

I am a family medicine physician who has been practicing in Maryland for the past 23 years, and I have never seen the situation as bad as it is now. Total payout of malpractice awards in Maryland rose from $56 million in 2002 to $93.2 million in 2003.

Who pays for this in the end? We all do: doctors and patients alike, in the form of budget-breaking malpractice premiums and skyrocketing out-of-pocket medical expenses.

The malpractice system is bleeding to death, and the Maryland legislature must take emergency action. We must pass malpractice corrections this year.

Dr. J. Michael Niehoff

Baltimore

The writer is associate director of family medicine at Franklin Square Hospital.

If insurance rates are rising for doctors, it is not because victims have hit a payday. Rates are going up because there is too much careless medicine and not enough discipline of dangerous doctors in the state.

I was the victim of medical malpractice by a doctor who had multiple claims filed against him and has had multiple claims filed since. I complained to the Board of Physician Quality Assurance more than two years ago, as did one of the other victims of this doctor's misconduct. The matter is "still under investigation."

The solutions that have been offered by the insurance industry and the governor propose to solve the problem of rising malpractice rates by limiting damages to the victims.

This so-called solution not only won't lower the incidence of malpractice, it could lead to greater danger for health care consumers. For when you lower the penalty for medical negligence, you will surely get more of that behavior.

Linda Croghan

Dundalk

As an obstetrician who practiced in Harford County for nearly 25 years, I was forced to stop delivering babies because of the excessive cost of liability insurance.

Excellent care of pregnant women requires time and effort. With payment for obstetrical services fixed by third-party insurance companies at a low level, only increased volume would produce the income stream needed to pay the liability insurance premium. I chose to stop delivering babies rather than compromise my level of care.

As the cost of liability insurance continues to escalate, I'm certain other obstetricians currently trying to carry the extra workload will realize they can't continue safely. Coupled with the fact that new medical school graduates are not choosing careers in obstetrics, it's only a matter of time before women will be unable find a qualified obstetrician.

Women dying in childbirth, which is currently a rarity, will return as a common event if the present conditions are allowed to remain unchanged.

Yes, the rising cost of liability insurance is a direct threat to our health care system. I should know -- my practice was an early casualty.

I'm certain it will not be the last unless change occurs soon.

Dr. David L. Zisow

Bel Air

A better solution to the malpractice "crisis" would be for legislators to enact reforms that remove the riskiest doctors from practice.

Only 3 percent of the state's doctors are responsible for 51 percent of medical malpractice payouts to injured patients, according to data from the National Practitioners Data Bank. The Maryland Board of Physicians has been dangerously lenient in its punishment of these repeat offenders.

Patient lawsuits aren't the problem. The number of malpractice lawsuits per Maryland physician has declined dramatically in recent years, the total and average amounts of malpractice payouts to victims have declined dramatically, the number of $1 million-plus payouts has plummeted and the number of doctors is increasing, government data show.

Ninety percent of Maryland doctors have never lost or settled a malpractice lawsuit, but they must cover the cost of those who have.

Proponents of eradicating patients' legal rights should be devoting their efforts to holding bad doctors accountable or enacting insurance reform.

Frank Clemente

Washington

The writer is director of Public Citizen's Congress Watch.

To say that the rising cost of malpractice insurance has gotten out of hand and is a serious threat to our medical system is quite an understatement. My medical group's malpractice insurance costs have increased more than 400 percent over the past three years even though we have no pending claims or judgments.

In the face of decreasing reimbursements for our services and increases in rent, costs of supplies, employee wages and benefits, etc., the increases in malpractice insurance rates are nails in the coffin.

We need a system that allows arbitration, provides certainty that a patient who is harmed is justly but not outlandishly compensated, punishes physicians who have recurring claims, reduces lawyers' reimbursements and punishes lawyers who bring frivolous suits.

Dr. V. John Blazina

Chevy Chase

It would be easy to point at rising malpractice rates as a serious threat to health care. After all, we have grown accustomed to the picture of a state overrun with litigation and silly lawsuits. But the fact is that in Maryland, this is not the case. The $635,000 cap on punitive damages to a victim who proves malpractice means that there are no jackpot awards in this state.

Malpractice rates rise because of negligent health care and a lack of accountability.

If the insurance industry put the same effort into improving the safety of medical practice that it currently is expending to limit liability, both the incidence of malpractice and insurance rates would go down. Then we would all win.

David Owen

Fallston

Our malpractice system in this state is crazy. It punishes all hospitals and doctors, even hospitals and doctors with unblemished records.

Hospitals have been faced with substantial increases in insurance premiums. And some physicians pay well in excess of $100,000 a year for their insurance. No wonder physicians are retiring early or limiting their practices and the services they provide.

Our senators and delegates in Annapolis must change the malpractice laws so hospitals and doctors get fair treatment.

They're not the enemy. We all count on them when we or our loved ones are injured.

Eugene A. Friedman

Baltimore

The writer is chairman of the Executive Committee of the Maryland Hospital Association.

I think it is ridiculous to look at placing a cap on medical malpractice claims. After living for the past two years with one leg issue after another after a femoral nerve block gone bad, I think I am the only one who can truly determine what my leg is worth.

Since my surgery gone bad, my leg isn't worth a dime because it still doesn't work. But it sure has cost me a lot of money to try to have it fixed.

The doctor who gave me that nerve block is still working. Why? So he can hurt more people? So they can miss work, have multiple surgeries, wake up each day never knowing if they will ever be normal again, and, like me, realize they are 27 years old and barely able to walk -- and that this might be as good as it gets?

As a victim of medical malpractice, I say don't hurt us anymore. Go after the source of the problem for once.

You want to lower rates? Stop offering coverage to the few doctors whose long records of negligence are driving up the costs for everyone.

Amy Walton

Ellicott City

If we are going to arbitrarily limit the amount of punitive damages that a paralyzed or deformed individual can seek in the court of law, we should also consider capping the number of malpractice occurrences before a physician loses the privilege of practicing medicine in Maryland.

Jon Gilden

Baltimore

I do think the rising cost of malpractice insurance is hurting our heath care system. When doctors are forced to pay extraordinary amounts for insurance, they must pass those costs on to their patients and their patients' insurance companies. This only creates one more obstacle to easily available heath care.

I believe that there is a rather simple solution. In malpractice cases, there should be three possible outcomes.

First, the judge or jury could find that the doctor made a significant and damaging mistake, in which case the patient would be compensated. Second, the judge or jury could find that the doctor did not make a mistake, in which case the patient would get nothing. Third, the judge or jury could find that not only did the doctor not make a mistake, but the lawsuit was frivolous, so that the patient and (especially) his or her lawyer have to pay the doctor damages.

This payment should be quite significant, enough to discourage lawyers from bringing any and every malpractice lawsuit to court, however trivial.

Just as doctors are responsible for providing quality care, lawyers should be responsible for telling their clients when and when not to sue.

Sarah Wheelan

Baltimore

Doctors are only human and will sometimes make mistakes. For more than 30 years, I have been practicing obstetrics and gynecology, so I should know. But the system of medical malpractice litigation is truly a detriment to society and needs to be completely redesigned.

Professional liability costs now eat up about 40 percent of the revenue I earn delivering babies. As this percentage creeps higher, it is only a matter of time before it makes no sense to continue practicing obstetrics at all. Meanwhile, families with sick or damaged babies get erratic compensation while highly paid trial lawyers reap big benefits.

So how do we make a better system?

First, there needs to be a cultural shift away from the idea of blaming one person if there is a less-than-perfect outcome. The success of the airline industry in fostering safety and reducing error through careful investigations of accidents followed by changes in design or practice may bear emulation.

The insurance industry should set up "no fault" compensation plans for those who have injuries that need care and compensation.

The medical profession should organize investigatory panels composed of doctors, lay persons and attorneys to review medical complaints and recommend actions.

These panels should settle the vast majority of complaints, leaving the criminal and civil legal system to deal with only the most egregious of situations.

Dr. John J. LaFerla

Chestertown

The rising cost of malpractice insurance is a serious threat to our health care system. My solution is very simple: Levy a substantial fine on attorneys who bring frivolous malpractice suits and use the money to reduce malpractice insurance costs.

Toni Hiteshew

Baltimore

For those who will be injured by medical error, a system must be maintained in a condition of financial solvency that will provide adequate care for physical injury and for emotional pain and suffering. For physicians and hospitals, the cost of malpractice insurance must be affordable.

But the current system is out of balance. Obstetricians have begun to stop practicing because of escalating insurance rates. Insurance rates are jumping each year because of swelling damage awards.

Every time a physician stops practicing, his or her patients are shifted to the doctors who continue to practice. But a major cause of medical errors is physical and mental exhaustion of doctors. And when there is no doctor available, the patient may receive no care and the patient may die.

Who pays for all this?

We all do, and we all bear some responsibility.

Dr. Ralph Scoville

Havre de Grace

Measures must be taken to reduce rising rates of malpractice insurance because such costs are a serious threat to our health care system. However, the steps currently contemplated to reduce those expenses are contrary to the reforms needed in Maryland.

We need to stop focusing on efforts that would benefit insurance companies and the few careless doctors who, even with numerous claims against them, continue to receive insurance.

The best way to lower rates is to practice safer medicine.

Lisa Miller

Baltimore

I am a volunteer in the emergency department at the Anne Arundel Medical Center, and I am deeply concerned about what's happening in this state because of the unbelievably high cost of medical liability insurance for hospitals, physicians and other health care providers.

Unless something is done, we could find some of our very best doctors retiring, as mine has done.

Maryland hospitals are paying millions more every year to purchase expensive insurance in response to huge jury awards.

Hospitals should be spending this money on patient care, not insurance bills.

Mary Patricia Rutemiller

Annapolis

Years ago, I spotted a bumper sticker that read, "Become a doctor and support a lawyer." Today, the sticker is not amusing.

Look at the back of any telephone book and read the ads for all the malpractice attorneys. Such legal gloating only encourages frivolous lawsuits, which are the engine that drives up malpractice insurance rates.

I suggest we go back to the days when lawyers did not advertise.

If one profession is allowed to prey on another, the guy in the middle suffers. And that "guy" is you and me -- every time we visit a doctor.

Rosalind Nester Ellis

Baltimore

To reduce the rising cost of malpractice insurance, the first and greatest step needed is to reduce the frequency of malpractice.

Doctors who have been sued 15 to 20 times each for medical malpractice are still licensed despite their negligence and potential to injure patients over and over again.

Until these careless doctors are held accountable and weeded out of the health care system, nothing can be done to reduce high medical malpractice insurance rates.

Stacy Kress

Pikesville

According to the American Medical Association, doctors in at least 19 states, including Maryland, have been forced to drop high-risk procedures or close their medical practices completely because of absurd financial and liability risks.

If our doctors are forced out of their offices by out-of-control insurance rates or the fear of being frivolously sued and losing their practices, who will be left to help us when our children are sick or we are in need of complicated surgery?

As insurance carriers raise premiums on doctors, their practices will suffer, as will our care.

We have a choice in Maryland. We can have doctors to see, or doctors to sue. We can't have both.

Carrie Capuco

Annapolis

The writer is executive director of Maryland Citizens Against Lawsuit Abuse.

Maryland's medical liability insurance problem is directly confronting Shore Health System, a two-hospital nonprofit health care organization in Easton and Cambridge.

This year, the medical liability insurance premiums for our two hospitals increased by more than 30 percent. Now, our liability insurance carrier has notified us that it will no longer write liability insurance for hospitals in Maryland.

Why? Because of a skewed medical liability system that has let claim payouts soar into the stratosphere.

Victims deserve fair compensation, but limits must be set to restore balance.

If this turns into a full-blown crisis, consumers will be the ultimate losers as hospitals decline, physicians leave the state and the cost of health care -- when it is available -- climbs out of the reach of most people.

Joseph P. Ross

Easton

The writer is president and CEO of Shore Health System.

What is disturbing about the current discussion of the cost of malpractice insurance is that while as many as 98,000 people are killed by medical mistakes annually across the country, we continue to think denying victims compensation will fix the problem.

Instead of taking steps to limit the rights of patients who have been injured and killed, hospitals should deny privileges to repeat malpractice offenders.

Andy Dale

Baltimore

Health care in America represents the aggregate efforts of a multitude of independent, predominantly small-business points of service. It is self-evident that the viability of these individual points of service is adversely affected by rising operating costs.

But it is not universally understood that the revenues generated from delivering health care are firmly fixed by institutions and governmental agencies. As such, rising expenses cannot be effectively passed through to offset increasing operating costs.

At some level of increased operating costs, each individual unit of health care delivery will become insolvent, until ultimately the entire health care system fails. For some specialties, this break point has arrived. For others, it is drawing near.

But it is a certainty that the projected escalation of medical malpractice insurance costs will precipitate, in a piecemeal fashion, the failure of our entire health care system.

Now is the time to implement measures to avert this consequence.

Dr. Mark F. Williams

Towson

The writer is president of the Maryland Society of Otolaryngology.

It is certain that the rising cost of medical malpractice insurance will have an adverse impact on and remain an increasingly serious threat to our health care system.

This cost will be passed on to consumers in higher health insurance premiums, increasing physician fees, "defensive medicine" with overuse of expensive diagnostic procedures, and reduced patient advocacy by health care providers.

Already, many experienced and talented physicians are leaving medical practice because of rising malpractice costs, loss of decisional autonomy in medical practice, overregulation by governmental and private health insurance agencies and fear of unwarranted malpractice lawsuits.

If rising medical malpractice insurance costs are not addressed by equitable tort reform, the exodus of competent physicians from private medical practice may become torrential in the future.

Dr. Roland C. Einhorn

Baltimore

The Sun posed the question of whether rising malpractice rates threaten health care. As a parent who lost a child to medical negligence, I think a much more serious threat to health care comes from the quick-fix solutions that have been proposed by the insurance industry in the name of reducing malpractice rates.

The insurance industry would lead you to believe that frivolous lawsuits are driving rates up and doctors out of practice. In fact, the number of claims filed and payouts to injured patients are both down significantly in recent years.

And what about those runaway juries? The fact is in Maryland we already have a cap in place that limits the punitive damages any patient may collect, so there can be no out-of-control jury awards. And Maryland took steps long ago to discourage frivolous lawsuits by requiring that a certificate from a practicing doctor be filed to verify the merits of a malpractice claim.

While medical malpractice lawsuits are not out of control, the costs of preventable mistakes in health care are staggering. A 1999 study conducted by the Institute of Medicine, a private organization established by Congress to provide advice on medical issues, concluded that between 44,000 and 98,000 Americans die each year as a result of medical mistakes made in the hospital.

Medical malpractice cases are costly to pursue. Very few victims could afford to bring these cases to court if they had to put up the money to do it. Further limitations on either legal fees or damages are designed to make it less feasible to bring these cases to trial successfully.

The real loser in this scenario will be the victim, the person who can afford it the least. The winners are the insurance companies and the bad doctors they protect.

Mark Cohen

Owings Mills

The writer's daughter, Brianna, died as a result of a medical mistake by the Johns Hopkins Home Care Group in December.

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