The proverbial three prongs of health care, namely quality, access and cost, are on the minds of many Mainers today. While the quality of health care in Maine is among the best in the nation (based on Medicare’s quality ratings), costs are too high and threatening access to care.
One of the cost-drivers in health care is the tort system. After a period of stability in the mid- to late 1990s, medical malpractice liability insurance premiums are now rising again, and reimbursements have not kept pace.
In addition to high premiums, the practice of defensive medicine adds millions to our health care costs. U.S. Senate Majority leader Bill Frist recently estimated that the practice of defensive medicine adds $150 billion to our nation’s health care cost.
In high-risk specialties, such as obstetrics and neurosurgery, access to care is particularly at risk. Across the country, one in seven obstetricians is no longer delivering babies. Maine has 40 percent fewer neurosurgeons practicing than 10 years ago. The nation’s medical liability crisis has caused 55 percent of orthopedic surgeons to avoid certain high-risk procedures, including 39 percent who no longer perform spine surgery.
Much of Maine remains underserved, and further deterioration in our medical liability climate will result in a full-fledged crisis. The Maine Legislature has an opportunity now to avert such a crisis by enacting medical liability reform as presented in L.D. 1378, “An Act to Preserve the Medical Liability Climate in the State by Capping Non-economic damages and Punitive Damages.” As any legislation passed will impact only cases filed alleging negligence in care after the effective date of the law, and because it takes five to seven years to get to a jury trial, enactment of reform legislation is essential now in order to begin the move to an improved climate.
L.D. 1378 would continue to permit the recovery of all the economic damages – past and future medical expenses, loss of past and future earnings, cost of domestic services, etc. – in a medical malpractice case, but would limit non-economic damages – the “pain and suffering part of an award – to $250,000.
In California, medical liability premiums increased only 245 percent between 1975 and 2002 after enactment of similar reform legislation. In Maine, premiums increased by 1,000 percent during the same period.
Non-economic damages are unpredictable and subjective. Seventeen states impose such limits. Maine citizens strongly support such limits. A professional poll taken less than two months ago showed 76.5 percent support for such a limit, with only 16 percent opposed.
The Maine Legislature has established limits protecting many entities and their employees, including ski areas, municipalities, bar owners and even HMOs. You can only sue your HMO for up to $400,000 but for your doctor the sky is the limit.
Ultimately, patients and employers pay the cost of medical liability premiums and if the medical liability system is not reformed more people will lose in terms of their access to quality and affordable health care; and they cannot afford to pay more in awards than all of the economic loss plus a quarter of a million dollars.
No reasonable person can support the inefficiencies in our medical liability system. Most people filing claims have not been victims of malpractice. Most people who have been injured never file a claim. More than half of the money paid into the system goes to the lawyers. Injured patients get 20 cents of the premium dollars – and get it five to seven years after they are hurt. Maine lawmakers need to work with physicians, employers, patient advocacy groups and, yes, even lawyers to fix our broken system. In Maine, we can do better, and we must for the sake of our patients and future generations of Maine citizens.
Dr. Lee Thibodeau is a board certified neurosurgeon practicing in Portland and co-chair of the Coalition for Healthcare Access and Liability Reform. Dr. Hector Tarraza is a board certified obstetrician-gynecologist, chief of obstetrics at Maine Medical Center and co-chair of the coalition.
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