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The Titanic revisited: Professional liability and access to care
The Titanic revisited: Professional liability and access to care Robert W. Oblath, MD, FACS, Encino, Calif “And as the smart ship grew In stature, grace and hue, In shadowy silent distance grew The iceberg too. Alien they seemed to be: No mortal eye could see The intimate welding of their later history,”1
The burdensome nature of the fee schedule and the conversion factor are only the tip of the economic iceberg facing vascular surgeons. Lying beneath the surface of this political seascape is the looming malpractice crisis. Not only is there tremendous pressure by the Plaintiff’s Bar to prevent tort reform, but the professional liability insurance companies can no longer hold the line on premium levels because medical malpractice awards have tripled between 1994 and 2000. Unfortunately, the fee schedule does not allow for significant reimbursement for this cost. Practice expense and work expense comprise 97% of each code, allowing only 3% of each current procedural terminology code for malpractice. Rising malpractice rates throughout the country will threaten the ability of Medicare recipients to seek and obtain medical and surgical care. Rising premiums, coupled with lower reimbursements per case, will push surgeons to either abandon their Medicare patients, or worse, to close their practices. Lowered reimbursements coupled with rising malpractice rates have caused physicians to either retire or leave states currently in crisis and relocate to more stable locales. Tort reform must be a federal issue. The Plaintiff’s Bar is obstructionist in the extreme. They claim that reform will deny citizens their day in court. California has maintained tort reform since the mid 1970s, and citizens have not lost their right to sue. The Plaintiff’s Bar also argues that reform will not lower rates. Note that currently California rates are stable. The Health Act of 2002 (Help, Efficient, Accessible, Low cost, Timely Health care) is modeled after California’s Micra law: a $250,000 cap on noneconomic damages, a From the AAVS Government Relations Committee. Competition of interest: nil. Reprint requests: Robert W. Oblath, MD, FACS, 16500 Ventura Blvd, Ste 360, Encino, CA 91436 (e-mail: [email protected]). J Vasc Surg 2002;36:642-3. Copyright © 2002 by The Society for Vascular Surgery and The American Association for Vascular Surgery. 0741-5214/2002/$35.00 ⫹ 0 24/9/127339 doi:10.1067/mva.2002.127339
642
3-year statute of limitations, proportional damages among independent defendants, collateral source rule modification, periodic payment of damages, and limits on attorney’s fees. The Health Act safeguards patient’s access to care through these common sense reforms. Insurance, as a cost of doing business, has become as unwieldly as the fee schedule itself. In some areas of this country, the cost of health insurance, workman’s compensation insurance, malpractice insurance, disability insurance, and other business-related policies must be so high that the physician must earn at least $500 to $1000 per day in after-tax dollars just to cover these costs. Because there is no legal way to pass these costs on to the patient or on to the reimbursing entity, malpractice insurance in many ways becomes an unfunded mandate. The cost of this unfunded mandate will reach crisis proportions nationally. A peculiar effect of the increased malpractice premiums has been on the fee schedule. One third of all vascular procedures in the United States are performed by vascular surgeons. The balance are performed by general surgeons (one third) and cardiac and neurosurgeons (one third). This tripartite division of labor lowers the vascular surgery practice expense per hour rate, and thus reimbursements per code are lowered. Despite the American Association for Vascular Surgery Government Relations Committee’s best attempt to have everyone who is a vascular surgeon register their specialty at the American Medical Association as vascular surgery, this has not happened. Why? Because in many states the malpractice premium for general surgery is lower than that for vascular surgery. This difference is so significant that it makes a substantial difference in the cost of doing business, and therefore, individual practitioners will not change their specialty listing. Thus, with general surgeons performing one third of the vascular procedures (at a low practice expense per hour rate) per year, the vascular surgery practice expense reimbursement is lowered, thus lowering each current procedural terminology code reimbursement rate. Malpractice rate differentials adversely effect total reimbursement, thus applying more pressure on access to care.
JOURNAL OF VASCULAR SURGERY Volume 36, Number 3
What is to be done? Political pressure must be brought to bear on the US Congress. The Health Act of 2002 must pass. Physicians must contact their senators and representatives and urge passage of the Health Act of 2002 (contact the American College of Surgeons’ website at clerkweb.house.gov/107/mcapdir.php3). The Plaintiff’s Bar must not be allowed to hold the patient hostage over tort reform. As long as physicians receive reduced reimbursements for professional liability insurance in the face of rising premiums, the members of the Plaintiff’s Bar should have their fees reduced as well. Physicians should not be the only professionals whose fees and incomes have been lowered and fixed. Whether they like it or not, plaintiff’s attorneys are an integral part of the healthcare delivery system and their fees and costs significantly drive up the cost of medical care. It is illogical and unthinkable to believe that the US Government can foster a fee schedule that fixes vascular surgeons’ reimbursement but allows all other costs to rise. Forcing physicians to limit or close their practices is not the answer. A reasonable middle ground must be found on this issue. Politicians and attorneys must understand the socio-
Oblath 643
economic and fiscal impact a decision of this magnitude will have on our society’s well being. Continued ineffective governance in Washington over this issue will surely “do harm” to the ill and the injured. We are professionals dedicated to the care of our patients, but the continued intrusion of faulty political thinking in Washington will lead to our inability to care for the Medicare patient. As Hardy concludes, “Or sign that they were bent By paths coincident On being anon twin halves of one august event, Till the Spinner of the Years Said “Now!” And each one hears And consummation comes, and jars two hemispheres.”1 REFERENCES 1. Hardy T. The convergence of the twain. In: Harmon W, ed. The top 500 poems. New York: Columbia University Press; 1992. p. 777-8.
In: Book Review of “Operating within the law: A practice guide for surgeons and lawyers” (Brown OW. J Vasc Surg 2002;35:1308). This book review contains two errors. The location of the publisher should be Shropshire, UK, rather than Wiltshire, UK. The price of the book should be $39.95 rather than $229.
The burdensome nature of the fee schedule and the conversion factor are only the tip of the economic iceberg facing vascular surgeons. Lying beneath the surface of this political seascape is the looming malpractice crisis. Not only is there tremendous pressure by the Plaintiff’s Bar to prevent tort reform, but the professional liability insurance companies can no longer hold the line on premium levels because medical malpractice awards have tripled between 1994 and 2000. Unfortunately, the fee schedule does not allow for significant reimbursement for this cost. Practice expense and work expense comprise 97% of each code, allowing only 3% of each current procedural terminology code for malpractice. Rising malpractice rates throughout the country will threaten the ability of Medicare recipients to seek and obtain medical and surgical care. Rising premiums, coupled with lower reimbursements per case, will push surgeons to either abandon their Medicare patients, or worse, to close their practices. Lowered reimbursements coupled with rising malpractice rates have caused physicians to either retire or leave states currently in crisis and relocate to more stable locales. Tort reform must be a federal issue. The Plaintiff’s Bar is obstructionist in the extreme. They claim that reform will deny citizens their day in court. California has maintained tort reform since the mid 1970s, and citizens have not lost their right to sue. The Plaintiff’s Bar also argues that reform will not lower rates. Note that currently California rates are stable. The Health Act of 2002 (Help, Efficient, Accessible, Low cost, Timely Health care) is modeled after California’s Micra law: a $250,000 cap on noneconomic damages, a From the AAVS Government Relations Committee. Competition of interest: nil. Reprint requests: Robert W. Oblath, MD, FACS, 16500 Ventura Blvd, Ste 360, Encino, CA 91436 (e-mail: [email protected]). J Vasc Surg 2002;36:642-3. Copyright © 2002 by The Society for Vascular Surgery and The American Association for Vascular Surgery. 0741-5214/2002/$35.00 ⫹ 0 24/9/127339 doi:10.1067/mva.2002.127339
642
3-year statute of limitations, proportional damages among independent defendants, collateral source rule modification, periodic payment of damages, and limits on attorney’s fees. The Health Act safeguards patient’s access to care through these common sense reforms. Insurance, as a cost of doing business, has become as unwieldly as the fee schedule itself. In some areas of this country, the cost of health insurance, workman’s compensation insurance, malpractice insurance, disability insurance, and other business-related policies must be so high that the physician must earn at least $500 to $1000 per day in after-tax dollars just to cover these costs. Because there is no legal way to pass these costs on to the patient or on to the reimbursing entity, malpractice insurance in many ways becomes an unfunded mandate. The cost of this unfunded mandate will reach crisis proportions nationally. A peculiar effect of the increased malpractice premiums has been on the fee schedule. One third of all vascular procedures in the United States are performed by vascular surgeons. The balance are performed by general surgeons (one third) and cardiac and neurosurgeons (one third). This tripartite division of labor lowers the vascular surgery practice expense per hour rate, and thus reimbursements per code are lowered. Despite the American Association for Vascular Surgery Government Relations Committee’s best attempt to have everyone who is a vascular surgeon register their specialty at the American Medical Association as vascular surgery, this has not happened. Why? Because in many states the malpractice premium for general surgery is lower than that for vascular surgery. This difference is so significant that it makes a substantial difference in the cost of doing business, and therefore, individual practitioners will not change their specialty listing. Thus, with general surgeons performing one third of the vascular procedures (at a low practice expense per hour rate) per year, the vascular surgery practice expense reimbursement is lowered, thus lowering each current procedural terminology code reimbursement rate. Malpractice rate differentials adversely effect total reimbursement, thus applying more pressure on access to care.
JOURNAL OF VASCULAR SURGERY Volume 36, Number 3
What is to be done? Political pressure must be brought to bear on the US Congress. The Health Act of 2002 must pass. Physicians must contact their senators and representatives and urge passage of the Health Act of 2002 (contact the American College of Surgeons’ website at clerkweb.house.gov/107/mcapdir.php3). The Plaintiff’s Bar must not be allowed to hold the patient hostage over tort reform. As long as physicians receive reduced reimbursements for professional liability insurance in the face of rising premiums, the members of the Plaintiff’s Bar should have their fees reduced as well. Physicians should not be the only professionals whose fees and incomes have been lowered and fixed. Whether they like it or not, plaintiff’s attorneys are an integral part of the healthcare delivery system and their fees and costs significantly drive up the cost of medical care. It is illogical and unthinkable to believe that the US Government can foster a fee schedule that fixes vascular surgeons’ reimbursement but allows all other costs to rise. Forcing physicians to limit or close their practices is not the answer. A reasonable middle ground must be found on this issue. Politicians and attorneys must understand the socio-
Oblath 643
economic and fiscal impact a decision of this magnitude will have on our society’s well being. Continued ineffective governance in Washington over this issue will surely “do harm” to the ill and the injured. We are professionals dedicated to the care of our patients, but the continued intrusion of faulty political thinking in Washington will lead to our inability to care for the Medicare patient. As Hardy concludes, “Or sign that they were bent By paths coincident On being anon twin halves of one august event, Till the Spinner of the Years Said “Now!” And each one hears And consummation comes, and jars two hemispheres.”1 REFERENCES 1. Hardy T. The convergence of the twain. In: Harmon W, ed. The top 500 poems. New York: Columbia University Press; 1992. p. 777-8.
In: Book Review of “Operating within the law: A practice guide for surgeons and lawyers” (Brown OW. J Vasc Surg 2002;35:1308). This book review contains two errors. The location of the publisher should be Shropshire, UK, rather than Wiltshire, UK. The price of the book should be $39.95 rather than $229.