The New York medical malpractice crisis: Who’s to blame?

The New York medical malpractice crisis: Whos to blame?Is this the endgame for the medical malpractice crisis?

A recent cover story in the New York Times describes how some financially struggling hospitals are “going bare,” meaning they are partially or completely forgoing malpractice coverage.

From an economic standpoint, it’s a rational thing to do.  Malpractice insurance costs are skyrocketing, forcing these hospitals into uncomfortable choices.

As one administrator bluntly puts it, “If I have to pay for nurses versus fund for malpractice, what are the hospitals going to do?”

But without insurance, malpractice verdicts directly impact patient care. Consider that happened to Wyckoff Heights Medical Center, in Bushwick, NY:

A jury awarded a $31.6 million judgment against the hospital in 2006, which was later reduced to $12.9 million and is being paid out in installments through 2018. As a result of that case, Mr. Hernandez said, the hospital closed its obstetric unit because it could not afford the liability. The hospital was also not delivering enough babies to justify the expense, he said.

Plaintiffs are affected as well, since they are forced to accept what’s little is left, or risk closing the hospital:

The lawyers said they were often forced to take payment on installment, or to try to pin more blame on physicians, who may have their own insurance. Martin Seinfeld, a malpractice lawyer, said he had had three cases this year involving Jamaica Hospital and New York Hospital Queens in which hospital lawyers had held out the specter of bankruptcy if he did not reduce his demands.

Doctors, who may have their own individual policies, now become malpractice targets.

This scorched-earth scenario is the endgame of the malpractice crisis.

Who’s to blame? Well, politically speaking, everyone.

Conservatives have failed to become flexible in their tort reform solutions, focusing only on a cap on non-economic damages. That’s proven to be politically unfeasible, and is unfair to patients.  They should re-frame the malpractice reform debate that focuses on injured patients instead, like in my home state of New Hampshire which recently passed first in the country malpractice reform.

Progressives on the other hand, are beholden to the interests of trial lawyers, and often dismiss the impact of malpractice on health care providers. Tort reform is routinely ignored in their health reform proposals, with the most recent example being its glaring omission from the Affordable Care Act.

So, it’s no surprise that the current malpractice trajectory leads us to what’s happening in New York. Other litigious counties are seeing similar situations, as hospitals and doctors find that risking bankruptcy as a more viable situation than carrying malpractice insurance.

And in the end, it’s the patients — particularly the poor population that these hospitals serve — that lose the most.

The New York medical malpractice crisis: Whos to blame?Kevin Pho is co-author of Establishing, Managing, and Protecting Your Online Reputation: A Social Media Guide for Physicians and Medical Practices. He is founder and editor of KevinMD.com, also on FacebookTwitterGoogle+, and LinkedIn.

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  • SaraJMD

    Thanks for writing this! I was very taken by this article, as well, and I’m happy to see discussion. I guess thankfully for the rest of the country, it’s worth knowing that NY is a bit of a malpractice worst case scenario, in that it is quite a litigious area (particularly the inner-city areas where these hospitals are located), and the legislative branch of state government is literally owned by the trial lawyers. The point that the existence of malpractice insurance is a lawsuit magnet, and that doctors will now have their skin (even more!) in the game is truly frightening.

    Much more importantly, I am also frustrated that the entire tort reform debate has been majorly sidetracked and hijacked. Rather than discussing it’s negligible impact on overall healthcare costs, we have to talk about how our society can go about providing for injured patients in a more efficient manner as you point out, but also, about physician supply. I firmly believe, as a physician practicing in a high-malpractice field in a high-malpractice region, that if we don’t change this system, we just won’t have enough doctors who are willing or able to put themselves through the torture of medical malpractice. The stress of caring for a patient who has a bad outcome is monumental in and of itself. To then have to relive the experience over and over again, for years or even decades, with your ass on the line personally and professionally, is beyond comprehension. This current system of blaming doctors for all bad outcomes is forcing physicians to limit their practice, take early retirement, or even leave clinical practice altogether. In addition, it takes time away from clinical practice, causes stress-related illness and burnout, and decreases physician career satisfaction, all of which make the physicians remaining in practice less able to care for patients. So a better way to frame the debate about tort reform is that unless we make some changes, we just won’t have any good doctors left. This article helped to crystallize my conviction that this is the bottom line.

  • Dr. Bob

    The root cause of the malpractice “crisis” is malpractice itself, and the ultimate solution is to reduce malpractice. Tort reform only shifts the costs to malpractice victims, their health insurers, and the taxpayers; it doesn’t do anything to actually reduce the costs.

    According to analysis of the National Practitioner Data Bank’s Public Use Data File, over the last 20 years over half of all the money paid out for malpractice in the US was paid out for the malpractice of only about 1.8 percent of physicians. Most of the physicians in this 1.8 percent had multiple malpractice payments in their records. And even more disturbingly, only 10 percent of them had ever had any action taken against their licenses and only 6 percent had ever had any action taken against their hospital privileges.

    Thus it would appear that a very small group of physicians tend to commit malpractice over and over and licensing boards and hospital peer reviewers are doing very little to stop them by restricting or revoking their licenses of privileges or even by requiring retraining.

    Maybe not all malpractice results from “bad” doctors, but clearly a small group of physicians is causing the bulk of the problem. Requiring them to be retrained or restricting their practices wouldn’t solve the whole problem, but it would be a good start. The way to solve the malpractice “crisis” is to reduce malpractice, not compensation to unfortunate victims.

    • http://twitter.com/MillerAndZois Miller & Zois, LLC

      “Maybe not all malpractice results from “bad” doctors, but clearly a small group of physicians is causing the bulk of the problem.”

      That is exactly right. Yes, there are great doctors making mistakes, no doubt. But there are so many “frequent flyer” doctors who repeated earn claims against them.

  • petromccrum

    If doctors and hospitals would immediately take responsibility for their actions there would be many fewer lawsuits. Many patients and families feel that they have no other recourse when they are told outright lies by medical staff, mistreated, ignored, disrespected,and outrageously OVERBILLED; regardless of the medical outcome.

  • Anirban Ghoshal

    One problem what I see is the non-viability of the physician countersuits, in cases where the frivolous blanket litigation involves all the Doctors in the care of the patients. Plaintiffs’ attorney just has to reach a settlement somehow and everyone is happy including the insurance Cos. This nuisance settlements drive up the cost overall. Mired in all this are the physicians who are being sued right & left for no reason, only to waste their time, money and peace of mind. If the malpractice mess has come to this, we get what we pay for enabling the lobby of trial lawyers, and making doctors a soft target. There is no way out of this insanity.

  • http://www.7POH.com/ Natasha Deonarain, MD, MBA

    Tort cost increased by 229% between 1996 – 2006. Defensive medicine estimated costs $100 billion per year; the cost to cover the uninsured population. Why are we still having this conversation? All doctors need to “go bare” until we get in place no-fault malpractice that has no incentives for profit. Follow the yellow-brick hospital-road to see what the wizard is really like behind that curtain….