An orthopedic surgeon and a neurosurgeon walk into a room …
Unfortunately, this is not the start of a joke. While we would prefer to be sharing best practices and treating patients in our exam rooms, the fact is we’re spending more time than we’d like in a courtroom. Because our medical liability system is broken, orthopedic surgeons, neurosurgeons, OB-GYNs and other specialty physicians continue to find themselves on the receiving end of meritless lawsuits. As a pediatric orthopedic surgeon practicing for more than 40 years in Iowa City, I’ve seen countless colleagues forced to defend their treatment decisions and reputations — leaving less time for patients — only for the lawsuits to be dropped, dismissed or withdrawn for lack of merit.
Our medical liability system costs too much, takes too long, undermines the doctor-patient relationship and does not serve the needs of patients or physicians. Too often, the cost of defensive medicine — the tests and procedures above and beyond what is medically necessary to limit exposure to litigation — is tacked on to health care bills, leading to steep increases in costs year after year. When applied to 2015 health care spending, defensive medicine adds anywhere from $160 billion to $289 billion to patient, physician, and overall health care system costs. In addition, the non-partisan Congressional Budget Office has found that $55 billion in federal health savings and $62 billion in deficit reductions overall could be achieved over a 10-year period, from 2017-2026, if the federal government passed reforms modeled on those that have been successful in many states, including California and Texas.
It’s not just the federal government that faces the high costs of meritless lawsuits. Nearly two-thirds of the closed claims in the past five years were dropped, withdrawn, or dismissed with no payments to the claimant, but still cost an average of $29,336 to defend. A recent study found that the average physician, practicing for 40 years, would spend nearly 11 percent of his or her career with an open, unresolved claim.
Furthermore, in the overly litigious environment that results from a lack of liability reform, physicians are re-evaluating the costs and risks of practicing medicine. This is clear from a glimpse of how OB/GYNs are feeling the pressure of threatening lawsuits. Recent surveys found that liability concerns were forcing 40 percent of all OB/GYNs to make changes in their practice, with 14 percent of OB/GYN respondents no longer taking on high-risk obstetric patients.
Fortunately, a solution — long overdue and notably absent from Congress’s 2010 attempt at overhauling our health care system — is in sight. Two separate but similar bills are working their way through Congress to reform this expensive and dysfunctional system.
Both H.R 1215, the Protecting Access to Care Act, and H.R. 1704, the ACCESS (Accessible Care by Curbing Excessive lawSuitS) Act, would control costs by placing a reasonable limit of $250,000 on the non-economic damages known as pain and suffering, while allowing full payment for lost wages, medical bills and out of pocket expenses. To ensure the system moves more efficiently for physicians and deserving patients, these bills would set the statute of limitations at three years after the injury occurs or one year after it is discovered by the claimant, whichever comes first, for the filing of a claim.
All of us in the physician community continue to fight an uphill battle against the only people who do benefit from a broken system — personal injury lawyers. At the expense of patients, they continue to pursue “jackpot justice” with lawsuits that lack merit and make the system inefficient for those deserving compensation.
We can find a cure by including proven reforms — such as those encompassed in H.R. 1215 and H.R. 1704 — in health care reform legislation under consideration this year. With fewer meritless lawsuits, physicians would feel less pressure to practice defensive medicine — instead relying on sound practice judgment that comes with years of experience. Most importantly, passing reform legislation will ensure that the physician-patient relationship is strengthened and the personal injury lawyers are no longer looming large in the exam and operating rooms.
Stuart L. Weinstein is an orthopedic surgeon and spokesperson, Health Coalition on Liability and Access. This article originally appeared on Neurosurgery Blog which is a publication of The American Association of Neurological Surgeons (AANS) and the Congress of Neurological Surgeons (CNS).
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