Saturday, September 06, 2003
Copyright © Las Vegas Review-Journal

MEDICAL MALPRACTICE INSURANCE: GAO: Crisis exaggerated

Report says doctors embellished claims about services

WASHINGTON -- A new congressional study confirms that rising medical liability insurance premiums have reduced patient access to specialty health care in Nevada and other states, but concludes that some doctors might be exaggerating claims of a "malpractice crisis."

Emergency surgery and newborn deliveries are more difficult for patients to obtain in parts of states where doctors face medical insurance pressures, auditors from the General Accounting Office said at the end of a 10-month study conducted from September 2002 to June.

In five states with reported medical access problems, including Nevada, the GAO said it found cases where orthopedic surgeons and family practitioners were leaving or cutting back services "largely in response to the high cost of malpractice insurance."

But investigators questioned the extent of the problem.

"Some reports of physicians relocating to other states, retiring or closing practices were not accurate or involved relatively few physicians," auditors found.

In Nevada, "random calls we made to 30 OB/GYN practices in Clark County found that 28 were accepting new patients with wait times for an appointment of three weeks or less," their report said.

The calls were made after state lawmakers had enacted reform measures and launched a state insurance program that relieved much of the liability pressure obstetricians-gynecologists were experiencing.

Surveys by the Nevada State Board of Medical Examiners found inaccuracies in reports that obstetricians-gynecologists were leaving the state, closing their practices or retiring due to malpractice concerns, the GAO said.

In following up reports that 34 obstetricians-gynecologists were curtailing their practices, the state board said in February that eight were still practicing and three had stopped practicing for reasons other than malpractice, the GAO reported. Of 11 surgeons reported to have moved, the board found four were still practicing, the agency said.

On the issue of tort reform, GAO investigators said limited available data indicates that insurance premiums and claim payments have been slower to grow in states that have placed caps on malpractice damages.

Between 2001 and 2002, average premiums for general surgery, internal medicine and obstetrics-gynecology grew 10 percent in states that have capped malpractice pain and suffering damages to $250,000, compared to 29 percent in states with limited tort reforms.

The GAO, the investigations arm of Congress, examined health care availability in nine states, including Nevada and four others that the American Medical Association declared in March to be in "full blown medical liability crisis" due to skyrocketing insurance costs.

The study was done at the request of three senior, Republican House lawmakers who favor legislation to limit jury awards in malpractice lawsuits as a way to reduce insurance premiums for health professionals.

A spokesman for Rep. James Sensenbrenner, R-Wis., said the study "demonstrates the need for medical liability reform legislation."

The 58-page GAO study, released Aug. 29, also has been seized by consumer groups and trial lawyers. They say it backs their contention that medical groups have doctored tales of physicians quitting in order to persuade state and federal policy-makers to curb jury awards and place fee limits on attorneys.

Gerald Gillock, a Las Vegas trial attorney, said the GAO confirmed a belief that reports of a "malpractice crisis" are unsubstantiated.

"The Nevada publicity has definitely exaggerated the number of doctors who are leaving as a result of malpractice reasons," Gillock said.

A survey conducted for the Nevada Legislature in January indicated about 100 doctors retired or left the state because of insurance problems, said Larry Matheis, executive director of the Nevada State Medical Association.

Matheis said it has been difficult to pin down with certainty how many doctors have taken actions that affect patient access.

"Doctors changed their practices, some left their practices, some moved and came back when things got better and they got insurance," he said.

Matheis said he spoke with GAO auditors when they were in Nevada in January. "They agreed with the basic point in Southern Nevada that the situation is fluid but there is a clear erosion of access" to obstetricians and emergency care.

New state medical liability laws were enacted during the 2002 special session of the Legislature to help stem the tide of departing doctors. Physicians and insurance officials said the new laws don't go far enough, however, and they unsuccessfully pushed for more reforms during this year's legislative session.

The law enacted after last year's special session caps medical malpractice awards for noneconomic damages at $350,000 with two exceptions. Awards can exceed the cap in cases of gross malpractice or when the judge determines exceptional circumstances merit higher awards.

Doctors and insurance company officials say the exceptions to the cap render it ineffective.

Attorneys maintain the rigid cap sought by doctors and insurance companies is unconstitutional and won't survive legal challenges.

Lawmakers refused to consider additional reforms this year in part because of legal concerns, but also to give last year's reforms a chance to work.

Members of a group called Keep Our Doctors in Nevada urged lawmakers to pass an initiative petition to amend the recently enacted liability laws. The petition failed in the Legislature and will now go before voters as a ballot question in the 2004 general election.

The proposal would eliminate exceptions to the $350,000 cap and place a limit on attorney fees. The measure also would ensure that doctors could not be forced to pay an entire jury award if they were found only partially liable for the malpractice.

Doctors say adopting tougher liability laws will go a long way to help prevent access problems that have already occurred in the state. They cite the brief closure of the valley's only trauma center and the closure of the orthopedic department and maternity ward at Desert Springs Hospital Medical Center as evidence of a crisis.

U.S. Sen. John Ensign, R-Nev., said the GAO could not say how many obstetricians-gynecologists may be open for business but restricting their services under scrutiny from insurers.

The American Medical Association challenged the GAO report, saying it was limited in scope and could not fully identify the extent that malpractice pressures were limiting patient access to care.

Review-Journal writer Joelle Babula and Knight Ridder Newspapers contributed to this report.