Published: Monday, June 11, 2012, 10:00 AM
About 20 years ago, lawmakers in Michigan enacted significant tort reform in the face of runaway lawsuits, physician flight to other states and an associated loss of access to health care for our people. That legislation helped halt flight and stabilized medical malpractice costs. However, since then we have done nothing except watch those reforms get chipped away little by little by the plaintiff negligence bar.
The issues in medicine for all of us are: Access, quality and cost. Clearly, we do not want lower quality but we do want cost control and we do want access to care. Since we last visited the medical malpractice cost issue in the early 1990s, we have seen how a mountain of bad lawsuits can bankrupt a large company (Dow Corning) and cost jobs and cost a generation the opportunity for jobs. We have begun to see how explosive health-care costs, absent overt malpractice claims, can destroy huge companies (GM bankruptcy) and cost our people even more jobs. At the state level we have a $27 billion unfunded retiree health care liability for teachers alone.
U.S. physicians feel that at least 25 percent of the cost of medicine is due to tests or treatments ordered mostly for (legal) defensive purposes. In New Jersey and New York, the percent of heart failure patients discharged from emergency rooms dropped from 24 percent to 9 percent between 1996 and 2010. For starters, each of those extra admissions carries a five-figure price tag and is a function of a broken legal system when you are just as likely to be sued and have done nothing wrong, or not be sued and have, in fact, committed malpractice (Colorado and Harvard studies).
It isn't just the cost of medicine that is outrageous. We are losing access to care. There are no OB/GYNs in 34 of Michigan's counties and none north of Bay City. Why? Roughly one in three OBs face a malpractice claim about every six years, and their settlements tend to be high. With the loss of high risk specialties (neurology, anesthesia, surgical specialties for example), direct access to care is lost and desperate patients appear in emergency rooms where they are more sick and expensive to treat. This is also reflected in rising insurance rates. This access issue is exacerbated by a projected 2020 Michigan shortage of 4,500 physicians in fields like pediatrics, family medicine and internal medicine. What's more, many of Michigan's largest population cities are already underserved. Rural regions like Michigan's thumb area have been underserved for years. As a practicing physician, I have seen too many good doctors pack up and leave for other states.
Adding fuel to this fire has been the erosion of our Michigan malpractice reforms. Loss of household services was part of "pain and suffering" where awards were capped in 1993. Over the years it has been moved into the "cap free economic damage" category. Also, interest rates for future damages have now been gamed to magnify settlements. Even the method for calculating multi-party settlements has been gamed to delete pre-trial settlements from any ultimate jury award and thereby explode awards! Then there is the "lost opportunity" (second bite of the lawsuit apple) doctrine about which Justice Taylor wrote: "It is confounding to attempt to ascertain just what the legislature was trying to do with this amendment. "Given this montage of issues and positions created by the language of this statute, it would be helpful for the legislature to reexamine its goal and the policies it wishes to promote and strive to better articulate its intent". Other (bipartisan) Justices said the whole doctrine was unnecessary.
Here is another example: Michigan requires a defendant to file an affidavit of meritorious defense within 91 days after the plaintiff file with the court. But let us say the plaintiff doesn't serve the defendant until the 90th day. How can you defend yourself with only a single day to prepare? That clock ought to start ticking when the defendant has been served. Additionally, the plaintiff lawyers are evading the statute of limitations by changing personal representatives of a decedent's estate again and again and grabbing an additional two year extension every time they do it. If all these are not wrong enough then consider this: The plaintiff lawyers want to charge interest on their attorney fees even before they have obtained an award.
The "Patients First Reform Package," currently being considered by the state Senate and House addresses some of the inequities in our professional liability statutes and, in so far as it controls costs of litigation, it will help with the costs of medicine and also help promote access to medical care for patients, families and seniors in Michigan. There is one other important part to the Patients First Reform Package. It is about equal protection under the law. By law, attorneys cannot be sued for "mere errors of judgment." Physicians deserve the same legal status if we act in good faith and exercise reasonable care, skill and diligence. This rule would not act independently of the standard of care but rather as a tool for the court to determine whether there has been a breach or not. Thus, there would be no special immunity to physicians as the standard of care would be unchanged and there would therefore be no change in the medical quality standards to which physicians are held. This would not provide excuses for drunk, drugged or incompetent doctors or a "free pass" to those who maim or kill patients.
The court would recognize, however, that the physician is often presented with an array of reasonable treatment choices and can select only one. This equitable change will address the all too often occurrence of a patient, disappointed by a bad result, pursuing a malpractice claim against his physician simply by finding a hired gun expert witness to testify that the doctors decision was a breach of the standard of care.
So, contrary to what the negligence bar attorneys claim, the Patients First Reform Package does not close the courtroom doors to patients who have legitimate cases to bring forward. Rather, the legislation seeks to end the erosion of the tort reform legislation of 1993, fix parts of it that the court feels are unworkable, and treats physicians equally under the law with attorneys and businessmen. If we address these issues, in the future I think you will have as good a chance of finding a physician as you currently do a lawyer. The Patients First Reform Package makes good sense and allows for good medicine.
Sen. Roger Khan, R-Saginaw Township, represents the, serves the 32nd District, which covers parts of Saginaw and Gratiot counties. He is the sponsor of a group of Senate Bills that would reform medical malpractice legislation.