Posted on Mon, Jan. 02, 2006


Signs of 'crisis' fading


Inquirer Staff Writer

The billboard that asked the last doctor leaving Pennsylvania to turn off the lights is gone. No hospital trauma center here threatened to close its doors on New Year's Eve because its emergency-room doctors couldn't get liability insurance. And the heated arguments among doctors, hospital administrators and malpractice lawyers have cooled.

Five years after the latest medical-malpractice-insurance "crisis" began to roil Pennsylvania, New Jersey, and other parts of the nation, a balance has returned to the system here.

While rates are still high, the largest malpractice insurers in Pennsylvania did not increase premiums this year.

The Mcare Fund, a state government program that pays malpractice awards and settlements between $500,000 and $1 million, saw its spending drop to $232.6 million in 2005 from $320.3 million a year ago and $378.7 million in 2003.

And the number of malpractice suits filed in the state declined by more than one-third between 2000 and 2004. The number of suits brought in Philadelphia - viewed as the epicenter of the malpractice "crisis" - was reduced by nearly half during that period.

"In Pennsylvania, the malpractice crisis is over," said William M. Sage, the Columbia University professor who headed the Project on Medical Liability in Pennsylvania. The project, paid for by the Pew Charitable Trusts, studied malpractice over the last three years.

While he would not go quite that far, Gov. Rendell said: "It is clear from every bit of evidence that the crisis has abated significantly."

Doctors and hospital executives, however, continue to worry that high malpractice costs will limit patient access to health care, including emergency care.

The sharp increases in medical-malpractice premiums that began in 2000 led many local doctors - particularly high-risk specialists such as obstetricians, orthopedic surgeons and neurosurgeons - to say they would restrict their practices or leave the state.

While some doctors did leave Pennsylvania or, for example, stopped delivering babies, there is no evidence that patients in this region were unable to get necessary care.

Hospitals and other health-care providers said they also were hurt.

"The crisis is not over," said Andrew Wigglesworth, president of the Delaware Valley Healthcare Council, which represents area hospitals. "The only thing that has happened is some moderation in the rate of increase of our premiums, but we still have issues in terms of recruitment and retention of physicians. We are still spending tremendous resources on this issue, which means we cannot hire needed caregivers or spend money on new medical equipment."

"There has been improvement, but there continues to be a need for an ongoing effort to prevent a recurrence of the crises that have occurred periodically over the last four decades," said Chip Hummer, a Delaware County orthopedic surgeon.

Similar spikes in malpractice costs occurred in the mid-1970s, mid-1980s and mid-1990s. That has led some experts to view the most recent problem as part of a broader insurance cycle.

In 2002, the Pennsylvania General Assembly passed legislation to address the increases in malpractice costs.

Hummer, 42, heads a nonprofit coalition of high-risk specialists pushing for changes in the legal system to preserve patient access to care. He said Pennsylvania Physicians for the Protection of Specialty Care wanted additional measures "to prevent another crisis" and to ensure that specialists in the state were not driven out of practice by high malpractice costs.

Some health-care advocates and trial lawyers warn that some of the changes already made bear an unseen cost.

"There are malpractice victims with legitimate claims which are no longer practical to litigate because of costs and barriers to bringing suit," said Gerald A. McHugh Jr., a trial lawyer with Raynes McCarty. "Now that we have made changes in the legal system prospectively, we need to focus on improving patient safety, because better care will mean fewer claims."

Sage, the Columbia professor, who is both a doctor and a lawyer, said now that the "crisis" had ebbed, policymakers, doctors, trial lawyers and others must work together to craft policies to prevent another.

"Pennsylvania is a good laboratory for reform," he said. While the state has been ground zero for the latest round of malpractice wars between doctors and trial lawyers, it has also implemented changes in the last several years that put it at the forefront of national efforts to improve patient safety.

Act 13, the law enacted in 2002 by the General Assembly, established the Patient Safety Authority. Now hospitals must report serious medical mishaps that injure patients as well as "near misses," acts that might have done harm.

The Pennsylvania Supreme Court established a rule that medical-malpractice cases should be brought in the county where care was rendered, significantly decreasing the number filed in Philadelphia, which is viewed as a more patient-friendly venue to try cases.

And Rendell and the legislature have used tobacco-tax revenue and excess money in the state's automobile catastrophic-loss fund to subsidize by more than $220 million a year over the last three years the surcharges doctors and other providers pay to the Mcare Fund.

The Mcare Fund abatement pays all of the surcharge for high-risk specialists and half of the amount for other doctors in the state. Last month, the General Assembly reauthorized the abatement for 2006.

Ultimately, legislators hope private insurers will be able to replace the Mcare Fund, but last year Insurance Commissioner M. Diane Koken ruled that there was not yet enough capacity in the malpractice-insurance industry to retire the government fund. Rendell has said that Koken and the Insurance Department will have key roles in preventing a recurrence of the problem.

Many have argued that a major factor contributing to the crisis was poor business practices by malpractice insurers that caused some to withdraw from Pennsylvania and others to fail.

"In the insurance market, many problems were caused by the unrealistically low premiums carriers set in order to increase their market share," McHugh said. "The Rendell administration's determination not to let that happen again is an important reform."

Rendell said the legislative, regulatory and legal changes implemented before and after he was elected had stabilized the situation and would cause continued improvement over time.

Going forward, Rendell said he wanted to focus on mediation to resolve disputes over care before lawsuits were filed. And he said he wanted to use taxes on cigarettes and other tobacco products to eliminate the Mcare Fund's estimated $2 billion unfunded liability.





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