Looking For Justice In The Malpractice Arena

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By Jeff Hall, Editor-in-Chief

Would I want justice if I underwent an amputation procedure that was later deemed to be unnecessary? You bet. Do I think this kind of clinical situation happens on a routine basis? Hardly. However, you wouldn’t know it by the seemingly skyrocketing malpractice insurance premiums being reported across the country.
Escalating jury verdicts seem to play a big role. A July 2002 report from the U.S. Department of Health and Human Services (HHS) noted there was a 76 percent increase in the average jury malpractice award from 1996 to 1999. You have to wonder how many verdicts are being fueled more by emotional empathy (from a likely jury of lay people) than the merits of the particular case.
The general thinking in the mainstream is that a costly jury verdict or adverse settlement will be a deterrent to malpractice and improve the quality of healthcare. However, if you check out Brian McCurdy’s cover story, “Looking For Answers On The Malpractice Crisis,” perhaps the opposite is true.
There is no question there are physicians in all fields who are retiring early or fleeing certain areas due to costly insurance premium hikes. New DPMs fresh out of residency are already saddled with considerable student loan debt so they will surely think twice about practicing in areas where high insurance premiums are the norm. This may lead to a shortage of doctors in these areas.
There is also a growing fear that physicians may think twice about performing certain procedures. Last year, a Harris Interactive poll found that 79 percent of physicians order unnecessary tests and 74 percent make unnecessary referrals due to concerns over potential liability issues. In the cover story, podiatric defense attorney Janice Roven notes that “It’ll get to a point in time where podiatrists or any doctors will restrict what they’ll do because they’re afraid of being sued.”
When faced with the tough combination of rising insurance premiums and declining reimbursement for services, podiatrists may have no other choice but to pass some of the costs along to patients. Another option is trying to see more patients per day, but this may lead to shorter, perhaps more rushed, patient visits. In this environment, mistakes are far more likely.
Are there any potential solutions to this mess? Right now, there is a push toward having caps on non-economic damages from malpractice lawsuits. In March, the House of Representatives passed a resolution that, among other things, would cap non-economic damages at $250,000. Yet the latest Senate version of the bill has the cap bumped up to $500,000.
Lobbyists can be fairly persuasive, but there is logic behind capping non-economic damages. Many podiatrists praise the California cap system, which caps non-economic damages at $250,000 and limits the time in which lawsuits can be filed to three years. The HHS report shows that premiums have seen a 167 percent increase in California since 1975. It sounds like a lot, but not when you compare it to the 505 percent increase in premiums seen across the rest of the country during that same time period.
Those in the know say caps are just one piece of the puzzle (albeit a very promising piece) and suggest having some kind of state board or arbitration board review of cases as well. These ideas certainly merit further exploration. While awaiting long-term solutions to the crisis, podiatrists should make every effort to ensure thorough documentation on their patient charts. It remains the best defense to thwarting malpractice claims.

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