Lee Goldman, M.D., executive vice president for health and biomedical sciences and dean of the faculties of medicine and health sciences at Columbia University testified today on medical malpractice reform before the New York State Senate Committees on Codes, Health and Insurance in Albany, New York.
Dr. Goldman is a cardiologist who has done extensive research on health outcomes. He spoke about the problems with New York State's current medical malpractice legal system and offered possible solutions. He also discussed how doctors are subject to oversight and review on many levels. Throughout his testimony, he focused on three themes - affordability, access and quality of patient care. He made the following key points:
•Malpractice costs are significantly higher in New York than in other states. A Pacific Research Center report commissioned by New Yorkers for Lawsuit Reform, released two weeks ago, ranked New York last among the fifty states for losses due to medical malpractice and at or near the bottom in most other tort categories. The report noted that 93 percent of doctors in New York said they practice defensive medicine.
•High malpractice rates reduce patient access and force many healthcare providers out of business. Several hospitals have closed their maternity wards. In Northern Manhattan, where Columbia University Medical Center is located, the only remaining obstetricians left are those who are part of ColumbiaDoctors. With average annual insurance premiums approaching $150,000 in New York County, higher in other places, an obstetrician cannot earn enough to support him or herself in a community like Washington Heights where many residents are low income and are on Medicaid, Family Health Plus or uninsured. If an OB/GYN stops delivering babies, his/her malpractice rates will go down by 40 percent.
•In October, the Congressional Budget Office (CBO) issued an opinion estimating the potential budget effects of medical malpractice reform. The CBO concluded that reform could lower malpractice costs by 10 percent. It also reported that in states that had not enacted reforms, like New York, the savings would likely be greater since the changes would be much more extensive than in states which had enacted reforms.
•The CBO also estimated that medical malpractice reform could lower overall health care costs by 0.5 percent. Between Medicaid, the Children's Health Insurance Program, Family Health Plus and other programs, New York State spends about $61 million a year on health care. Reducing those costs by 0.5 percent would save the state $305 million and help close the State's budget gap.
•The annual malpractice insurance cost for Columbia University Medical Center and its affiliated hospital, the uptown campus of New York-Presbyterian Hospital, is expected to exceed $71 million in 2010. Saving 10 percent of that could be used instead toward treating patients, promoting public health, training doctors and other professionals, getting new equipment, conducting research to prevent disease, and even lowering rates charged to patients for medical services.
•In addition to savings, a series of medical malpractice reform measures in Texas in 2003 led more doctors to practice in Texas. In 2003, about 2,500 applied to take the Texas medical licensure exam. In 2009, that figure was close to 4,000 - more doctors in all fields from primary care to many of the high-cost specialties and in all parts of the state from inner city Houston to rural west Texas. This 60 percent increase is well above any population increase Texas has seen since then. This means greater access to care, especially for the underserved. By contrast, in roughly the same period, New York's increase was less than 500.
Dr. Goldman also addressed an argument made by trial lawyers that they are policing the medical profession, and explained that physicians are subject to oversight and review on many levels.
First, all medical professionals are subject to licensure and discipline from the New York State Department of Education and other state agencies. They are also reviewed by payers, Medicare, Medicaid, and private insurers, all of whom measure quality. With the new physician and hospital quality measures coming out of Washington and the emphasis on comparative effectiveness research, this will only increase. Finally, there are surveys like the U.S. News and World Report and New York Magazine's Best Doctors, and perhaps most importantly, patients who demand excellence and let their physicians know when they are displeased.
Second, medical malpractice lawsuits are not a good way to police against bad doctors. Some estimate that virtually every New York neurosurgeon will at some point in their career be sued for malpractice, 80 percent within the first 10 years of beginning practice. Obstetricians have similar numbers. It is arguable what percentage of neurosurgeons are bad doctors, but one can say with certainty the number is not 80 percent.
Dr. Goldman offered four suggestions to reform the medical malpractice system by lowering costs, increasing access and promoting quality:
1.Caps: Put a limit on non-economic damages, which have been a central part of the successful reforms in California and Texas. Medical costs and lost income would continue to be fully compensated. The only damages that would be limited would be pain and suffering and, in some cases, punitive damages.
2.Safe Harbor: A doctor who meets or exceeds the standard of care, who does everything he or she is supposed to do and does it well, would not be held liable in a medical malpractice case simply because there was a bad outcome. There have been tremendous advances in evidence-based medicine so that there is very often consensus on what practice standards should be. Doctors who do not depart from the standard of care should not be subject to malpractice liability.
3.Sorry Works: Apologize and compensate. Because of the current litigation climate, a doctor who makes a mistake and knows he or she made a mistake is very reluctant to admit that mistake and apologize to the patient for fear that the apology could be used in a future law suit. Amend the rules of evidence so this type of apology cannot be used in court, as 30 other states have done. This will go a long way to turning down the temperature when a mistake is made. Do not let fear of lawsuits prevent people from settling problems quickly and easily.
4.Other Ideas: Set up a pool to reimburse families as they incur expenses to care for their children born with defects related to a doctor's management, set up a no fault system for babies born with non-preventable birth defects, enact enforceable sanctions for frivolous lawsuits, compel expert discovery and disclosure, and strengthen the physician certification requirement. A physician claiming that a malpractice case has merit should at least have to assert so in writing; furthermore, the certifying physician should be knowledgeable on the subject at issue. e.g., A dermatologist may not be qualified to judge the suitability of an obstetrics case.
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