Doctors seek showdown on malpractice

THE BALTIMORE SUN

Placed strategically between the soothing Mediterranean scenes in the waiting room of Foris Surgical Group in Frederick are life preservers bearing a discordant message: "Save Our Doctors."

Inside each preserver ring is a notice that the practice will close Jan. 1 "due to the overwhelming burden of skyrocketing liability insurance costs."

The Maryland doctors are hardly alone in pursuing such tactics to counter rising premiums for malpractice coverage. While many doctors avoid such terms as "job action," physicians around the country are increasingly taking a page out of manuals written by labor organizers and other protest movements. They've resorted over the past few years to tactics that include mass marches, limiting treatment to emergencies or suspending service altogether.

Although the doctors haven't always been successful in gaining the insurance reforms they've sought, many industry experts and political analysts say the pressure exerted by the medical profession has helped move the issue to the forefront of the political agenda.

In threatening to lay down their scalpels, the Frederick surgeons joined efforts by other Maryland doctors to galvanize support for changing how state courts judge fault and award damages in malpractice cases. Last month, 50 or so doctors in Prince George's County declined non-emergency cases for a day. A similar number in Washington County refused to schedule non-emergency appointments for a week.

The doctors have helped generate the pressure that led Gov. Robert L. Ehrlich Jr. and legislative leaders to call an extraordinary holiday-week special session of the legislature, set to convene Tuesday.

"There hasn't been a single state that's enacted major tort reform without physician job action," said Dr. Manuel A. Casiano, a Foris member who has been practicing in Frederick for more than 15 years.

In the past few years, for example:

All the general and cardiac surgeons around Wheeling, W.Va., - about a dozen - took "leaves of absence" as higher malpractice premiums came due, halting most surgery at three local hospitals.

As many as 70 percent of New Jersey's 22,000 doctors, according to estimates by the state medical society, closed their offices, some for up to a week, to rally in Trenton, the state capital, for tort reform.

Hundreds of doctors in Florida stopped elective surgery, shut offices or cut back office hours as a four-day special legislative session convened on tort reform.

Surgeons in Nevada, angered by rising malpractice premiums, declined to sign up to be on call at the state's only trauma center, forcing it to shut down for 10 days.

Though hard to measure precisely, physician activism "has become progressively more widespread" as managed care has squeezed doctors' reimbursements and made it harder to pass on higher costs, said Randall Bovbjerg , a researcher at the Urban Institute who follows malpractice issues.

While protests over malpractice insurance bubbled up periodically in the 1970s and 1980s, doctors in the past had more leeway to raise rates to cover higher premiums. Now they are constrained by contracts with insurers. "It's quite clear the pain is worse this time," Bovbjerg said.

Direct action

Those in the profession say doctors - who traditionally have stuck to their medical practice and left the lobbying to professionals - have little choice but to resort to direct action, especially as the influence of the American Medical Association has declined.

Dr. Gregory Saracco, a Wheeling surgeon, said that before taking action, doctors in West Virginia had been making little headway in getting the attention of state officials.

"The governor wouldn't talk to us for a month, " said Saracco, then president of the Ohio County Medical Society. "The day the leaves of absence started, I was in his office that very afternoon." The governor quickly put together a reform package, and the surgeons began returning to work after two to three weeks.

The surgeons did handle some emergency cases during the "leaves of absence," Saracco said; he came into the hospital, for example, to repair a ruptured colon. Other patients went to Pittsburgh, about 80 miles away, or elsewhere for care.

Joined against judge

Saracco said doctors in the Wheeling area first began organizing in 2000, when they worked, successfully, to defeat a local judge they considered unfair to doctors in liability cases. More than 300 doctors and their supporters switched their party registration from Republican to Democrat, he said, so they could vote against the incumbent judge in the primary election.

Another shutdown came in Las Vegas in July 2002, as most of the 67 participating surgeons stopped signing up to be on call for the University Medical Center trauma center.

"Physicians felt they were not going to continue to pay $150,000 a year [for liability insurance] in our sue-happy society, and go and take call at the county charity hospital," said Dr. Michael Colletti, a rheumatologist who is president of the Clark County Medical Society. By not responding to trauma emergencies, Colletti said, the surgeons could cut their malpractice premiums substantially and continue their regular surgical practices.

Reform on ballot

Without enough doctors on call, the trauma center shut down. After 10 days, the doctors received temporary status as public employees, giving them liability coverage, and they returned to trauma duty. By the end of the month, the Nevada legislature was meeting in special session and passed a compromise malpractice reform package.

Dissatisfied with the compromise, doctors continued to mobilize, collecting 90,000 signatures to get a reform package on the ballot this year. Last month, nearly 60 percent of Nevada voters approved the package, which included a tight "pain and suffering" cap and limits on lawyer fees.

Other physician actions haven't been as drastic as shutting down a trauma center, but attracted widespread attention because of the sheer numbers involved.

In Florida in 2002, more than half of the 2,200 doctors in Palm Beach County attended at least part of a two-day seminar on malpractice, said Dr. Alan Pillersdorf, a plastic surgeon who was then president of the Palm Beach County Medical Society.

A series of marches followed around the state. Last year, Florida passed a compromise tort reform bill. Doctors felt that wasn't sufficient and went to referendum for a limit on lawyers' fees. That passed last month.

"We've shown that David can slay Goliath if you stand together," Pillersdorf said.

While marches have been widespread, results have been mixed, said Cheye Calvo, a health policy specialist for the National Council of State Legislatures. The particulars of malpractice reform vary with state laws and local politics, he said.

In New Jersey, for instance, physician demonstrations led to a law creating a state fund to subsidize malpractice premiums, which was signed into law in June. Doctors, however, failed to achieve their goal of a cap on so-called pain-and-suffering payments to plaintiffs.

Legislation has stalled in other states. For example, Calvo said, Pennsylvania didn't make any major reforms, despite substantial physician activism there. And doctor-backed referenda were defeated by voters last month in Oregon and Wyoming.

Carlton Carl, director of media relations for the Association of Trial Lawyers of America - a group that battles doctors over tort reform - said it's fair to call the doctor protests strikes or job actions.

"Work stoppage, work slowdown - there are any number of terms that might apply," he said.

Doctors, however, are circumspect about how they label their actions.

Tenna Wiles, executive director of the Palm Beach County Medical Society, described a demonstration there not as a job action but as "a public awareness opportunity - a thousand physicians marching around the [county] courthouse."

"American College of Surgeons does not support job actions. Period," said Christian Shalgian, manager of legislative affairs for the surgical society.

The question isn't one just of terminology. It's one of legality and ethics as well as public image.

Doctors, who are potentially subject to antitrust complications if they are seen to be colluding, are careful to say they have made their decisions on job actions individually or within their practice.

Carl, the trial lawyer spokesman, disputes that. "Clearly, this is an organized effort by the AMA and state medical associations. It raises serious antitrust issues. And the denial of even non-emergency care is questionable for a doctor," he said

Dr. Donald Palmisano, immediate past president of the American Medical Association, disputed that assessment. "We're not coordinating anything except exercising our First Amendment rights," he said.

The doctors maintain that their actions, which might produce temporary disruptions, are for the benefit of their patients as a class, who stand to lose services permanently if rising insurance rates push more doctors out of business altogether.

Lance Stell, an ethicist who directs the medical humanities program at Davidson College in North Carolina, said, "In traditional medical ethics, the idea of being advocates for patients in general is hard to see. The allegiance is to individual patients."

However, he said, ethically, a doctor is entitled to take a day off, as long as he arranges back-up for his patients; it doesn't matter whether he spends his day off on the golf course or at a legislative hearing. On the other hand, he said, if there were a case where it could be demonstrated that patients suffered or that emergency services were denied, there would be ethical and legal violations.

Dr. Mark Artusio, of the Frederick surgical group, said he and his colleagues didn't really become activists until a meeting of state surgeons in Baltimore in September. Shortly after that, the group got its insurance bill, which - with a 33 percent rate boost and the discontinuation of rebates offered in previous years - amounted to an increase of about 50 percent. It reached the point, Artusio said, where liability premiums were equal to half the take-home pay of the group.

"We have a line of reimbursement, and a line of litigation costs," said Dr. Max Wingerd, another surgeon in the group. "When those lines cross, we're done."

Beyond the price of insurance, the Frederick surgeons said they are frustrated with a system that generates too much litigation, and in which more money goes to lawyers and insurance companies than to injured patients. They also fret that fear of litigation colors too many medical decisions.

Early last month, the five surgeons met for four hours one evening at Artusio's house to consider their alternatives.

"Essentially," Artusio said, "we decided we wanted to take a more aggressive stance."

Now, with the special session imminent, the group remains cautious. The doctors will decide after the special session whether to go ahead with their plan to suspend their practice Jan. 1.

The group would keep its office open, in the short term, with the staff doing paperwork and helping patients find other care. They expect to be lobbying when the legislature convenes next month. Some of the surgeons might look for short-term fill-in work in other states, where an agency would pay for their insurance. If there's no reform soon, they said, they would consider relocating to other states.

But Steven J. Brand, one of the surgeons, said he's reluctant to commit to anything long-term.

"As soon as the governor and legislature do their jobs," he said, "I want to be back the next day."

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