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Overcoming the obstacles to medical liability reform

From the September ACP-ASIM Observer, copyright 2002 by the American College of Physicians-American Society of Internal Medicine.

By Robert Doherty

Over the past several months, many ACP-ASIM members have called to express concern about out-of-control medical liability premiums and excessive lawsuits against doctors. They want to know what the College is doing to address the problem.

I've told them that ACP-ASIM is a leader in the national movement to enact caps on non-economic damages and other effective tort reforms. We are one of a handful of specialty societies serving on organized medicine's steering committee on physician liability insurance reform. The committee, which includes the AMA, medical society leaders from key states, ACP-ASIM and several other specialty societies, is developing a national campaign to support liability reform at the federal and state levels.

But I've also let them know that they cannot realistically expect the 107th Congress to enact caps on non-economic damages and other effective tort reforms. Rather than expecting a "quick fix" from Congress, College officials think that effective reform will require a sustained advocacy effort over several years at both the state and national level.

This is not a popular message to give members who are facing a crisis now. The reality, however, is that we face huge political obstacles in getting liability reform enacted by Congress and state legislatures. Understanding those hurdles is the first step to overcoming them.

Obstacles to reform

Our principal adversaries consist of the national and state associations of trial lawyers, a well-funded and highly effective lobby that will do everything in its power to block effective reforms. The trial lawyers can usually count on the support of consumer groups, liberal activists, judges and many newspaper editorial writers in mobilizing opposition to medical liability reform.

Why are the trial lawyers so effective? In most states, they raise far more funds to elect lawmakers and judges who oppose tort reform than doctors do to elect those who favor reform. While physicians all too often assume that the "rightness" of our cause will prevail, our opponents understand that what really counts is electing candidates who will support their political agenda. And the main way to elect candidates who will support you is to raise the money they need to win the race.

Lawyers are also much more willing than physicians to run for office themselves. Attorneys make up the single largest occupational group in the U.S. Congress and most state legislatures. By contrast, a relatively small number of physicians run for elected office and even fewer get elected. (Out of 100 Senators, for example, there is one physician and 42 lawyers.) Is it any wonder that the U.S. Senate is the graveyard for effective medical liability reform?

It is not surprising that there are more attorneys than doctors in elected offices. For lawyers, moving from practicing law to making law is a natural career progression. Most doctors, by contrast, would rather take care of patients than write laws. In addition, physicians who seek elected office often find it hard to find the time and raise the funds required to run an effective campaign.

While the number of physicians in office will probably never rival the number of attorneys, physicians can help elect doctors, nurses, businesspeople and even lawyers who support medical liability reform. To do so, the medical profession must do a better job of participating in the political process.

The role of public opinion

We also need to do a better job of influencing public opinion. I've heard some physicians complain that the consumer groups that ally themselves with trial lawyers must either be too stupid to know what is really in their interests, or must be in the trial lawyers' pocket.

The truth is that many well-informed consumer activists, newspaper editorial writers and other opinion leaders sincerely believe that medical liability reforms that put limits on damages or access to the courts would not be in the public's interest. They argue that caps on damages, for instance, would allow "incompetent" physicians to kill or maim patients without having to worry about being sued for the harm that was done. It is hard to compete in the court of public opinion if the argument compares the value of a young child's life that is lost due to "malpractice" against protecting "rich doctors" from being sued for non-economic damages.

So how do we influence public opinion to support medical liability reform? We can start by showing the public what it costs when health care dollars get diverted to pay for excessive lawsuits. Every health care dollar that goes into an attorney's pocket or is paid out in "out-of-control" awards, for example, is a dollar that we can't spend to vaccinate a child or expand health insurance coverage.

The other compelling public argument is that out-of-control lawsuits are threatening patients' access to doctors. The AMA, with the support of ACP-ASIM and other national specialty societies and state medical societies, is launching a public education campaign with the message, "Will your doctor be there?" The advertisements tell the stories of physicians who stopped delivering babies, left town to relocate to an area with a more favorable liability climate or retired early—and left patients behind.

Finally, the medical profession must show that lawsuits are not the way to protect the public from incompetent doctors. Quality improvement, patient safety interventions, peer review and other methods designed to prevent harm from occurring in the first place are all better than allowing patients to sue after harm has been done.

Winning the fight

Acknowledging the political prowess of the trial lawyers does not mean conceding that they will always win. It does mean stepping up the participation of physicians in the political process to counter that group's efforts.

Understanding why some consumer groups and editorial writers oppose medical liability reform does not mean that we can't win the public opinion battle. It instead means communicating to the public the price they pay for an out-of-control medical liability system in terms of reduced access and money being diverted away from patient care to attorneys' fees.

We know that medical liability reform can be won. Just look at California, which has had caps on non-economic damages and limits on contingency fees for decades.

It is unrealistic to expect that immediate help will come from the current U.S. Congress. But it is realistic to believe that a sustained advocacy campaign can bring about effective reform at the national and state levels, provided that we are willing to do what it takes to understand and counter the efforts of our adversaries.

Robert B. Doherty is ACP-ASIM's Senior Vice President for Governmental Affairs and Public Policy.

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