February 6, 2005

By Dr. Donald J. Palmisano and Dr. John Evans

The debate over medical liability reform needs to stay focused on patients and protecting their access to care. The debate is not about doctors versus lawyers. In that game, nobody wins. Physicians are asking for reasonable, proven reforms that have worked in other states. These reforms protect patients' access to care and preserve their access to the courtroom.

Currently, there are 20 states in a full-blown medical liability crisis. South Carolina sits precariously on the edge as a state showing the problem signs of a crisis. We do not want South Carolina to fall. The American Medical Association and South Carolina Medical Association stand together with our patients to urge the legislature to enact proven reforms and prevent a crisis.

As physicians, we treat our patients after fully considering which treatments will work best. We use proven treatments. In the medical liability debate, we urge legislators to use proven treatments and consider how comprehensive reforms, including a reasonable cap on non-economic damages, can help protect our patients and our profession. California has had proven medical liability reforms in place for nearly 30 years. This is why physicians there have not been forced to restrict services, retire early, or relocate to other states.

A cap on non-economic damages, also called damages for pain and suffering, is only one piece of the pie. If patients are harmed by negligence, then we support appropriate payment for economic damages, which include lost wages and benefits, medical costs, childcare costs, domestic services, and any other measurable expenses. We want to restore fairness, balance and predictability to the current jackpot-justice legal system.

Caps do not limit a patient's right to file a lawsuit or hold a negligent doctor accountable. We believe passionately that patients harmed or injured by a physician's negligence should be compensated quickly and fairly. Avoiding accountability has never been an option for physicians. Each time we interact with a patient, we understand there is a deep trust that forms. We do our utmost to honor our sacred ethic to do no harm.

Personal injury lawyers, on the other hand, appear not to consider the harm they do to their clients and to physicians when they file unmeritorious suits. In fact, nearly 75 percent of the cases they file against physicians are closed with no payment. And of the cases that make it to trial, the physician is found not negligent 86 percent of the time. The cost to defend these cases averages nearly $90,000. This money cannot be spent to improve patient care and is further proof of how badly the system is broken.

A cap on non-economic damages is a major component of a comprehensive plan to fix the broken system. A limit of $250,000 has proven successful in California for nearly 30 years. In Texas in 2003, the legislature enacted medical liability reforms that included a $250,000 cap on non-economic damages for physicians. Texas voters chose to change the state constitution and make the cap permanent. Since then, three major improvements have occurred in Texas: the state's major liability insurance carrier lowered rates for physicians (twice); more insurers

are seeking to do business in the state; and access to care is slowly improving. In states where legislators have failed to act, such as Georgia, North Carolina and even South Carolina, the crisis has become worse. A cap must be part of a comprehensive solution.

We support reforms to ensure that more of the jury award goes to the patient and not the personal injury lawyer. Currently, the attorney can receive 40 percent or more of an award in South Carolina. We believe that as the award increases, the patient's percentage should go up. Why should the personal injury lawyer walk away with money that the jury intended as compensation for the injured patient?

We support legislation to improve patient safety, such as voluntary, confidential reporting of errors and near-errors so they can be studied and analyzed to help develop improvements for patient safety. We need to focus on preventing future errors, and get away from the current "shame and blame" mentality, which helps no one. While these efforts will go a long way to prevent system errors, state medical boards need increased funding for quick and proper investigations of the few bad doctors.

Opponents of reform do not want to change the status quo, but patients throughout South Carolina recognize that common-sense reforms are needed because patients are beginning to lose access to care. These reforms are supported by 73 percent of Americans, South Carolina Governor Mark Sanford and President George Bush. We appeal to policy makers in South Carolina to join us in honest debate and enact proven medical liability reforms on behalf of the future of health care for our patients.

Donald J. Palmisano, M.D., J.D., is immediate past president of the American Medical Association; Dr. John Evans, M.D., is president of the South Carolina Medical Association.

ITEM TWO: Travels

Came home for the weekend and Robin and I saw the Super Bowl with my Mom at her house.  She is doing well and walking without the walker on occasions despite being told to always use it!  Her mind is sharp and she always is a delight.

Left home today, Monday, to come to Reno, Nevada.  Just checked into the hotel.  Usually it is my policy to stay home on Mardi Gras but hard to turn down doctors who want to discuss the medical liability crisis.  The meeting is the Society for Maternal Fetal Medicine.

Tomorrow evening I go to Las Vegas to deliver a talk there to the Health Care Administrators Association's Annual Executive Forum.

Picked up a cold, probably on the planes.  Will try to get to bed soon.

ITEM THREE: Lagniappe

Happy Mardi Gras!  Tomorrow is Fat Tuesday!  New Orleans plans for next year's Mardi Gras the day after Mardi Gras ends.  It is part of the essence of this unique town.  Robin and I rarely go to Krewes and Balls but this Saturday night a dear friend was the king of one and he and his wife generously invited us.  I will show you how we started out to attend the Ball and then how I looked after I was told I needed more costume.

See attached photos in version 2. (Sending in two versions as some of you do not accept mail with attachments.  If you are one of those individuals, at least you will see this update without the photos.)

Stay well and travel with care.  The world is a dangerous place.

Donald

Donald J. Palmisano, MD, JD

AMA Immediate Past-Past President