1. Malpractice Insurance Premiums
2. Presidentâ€™s Message
3. Report from Executive Secretary
4. Work Comp Goings On
1. Med mal premiums; just the facts, Mâ€™am.
A very cogent piece about the cause of high medical malpractice premiums was presented by Alex Tabarrok in a recent Wall Street Journal editorial. He makes a great argument for the prime cause being astronomical awards particularly those in venues where elected judges and biased juries have no restraint applied to the amounts they award for pain and suffering. He pretty much puts to rest the â€œevil insurance companies price gouging doctorsâ€ theory and the insurance cycle theory that the plaintiffâ€™s bar and their predominantly Democratic legislator buddies love to dredge up in any discussion about med mal tort reform. He cites a lot of facts to support his thesis, facts that the trial bar ignores in their passionate opinion that high premiums are the result of everything but an out of control tort system. Tabarrokâ€™s quote of Daniel Patrick Moynihanâ€™s famous comment is particularly pertinent: â€œWhile all men are entitled to their own opinions, they are not entitled to their own facts.â€ The complete text of the editorial can be read by going to the www.independent.org web site and clicking on the Tabarrok article in â€œNews Alerts.â€
2. Presidentâ€™s message for May: Transitions in Neurosurgery Part V
Receiving a complaint of a malpractice litigation filing is an experience we all hope to avoid, but most neurosurgeons will have this experience during their career, and unfortunately, often several such occurrences.
Fortunately for California neurological surgeons, we have MICRA, protection that so far has been the national gold standard, one that physicians in other states admire and desire. MICRA, passed in 1975 in a special session of the legislature as AB1 resulted in a series of statutes called Medical Injury Compensation Reform Act of 1975 (MICRA). The most important features were limiting non-economic damages in a claim to $250,000, limits established by â€œcollateral source paymentsâ€ (sources that a claimant has to contribute to the award, decreasing the amount the defendant owes), and definite limits on attorney contingency fees. MICRA also obligates a claimant to give 90 days notice of an intention to sue. Attempts have been made to establish a national MICRA type law, but so far this has been unsuccessful. We in California are in constant danger by the trial lawyers to weaken the present law, especially as it applies to non-economic damages limits. But any such liberalization of the total would result in significant increases in our malpractice costs, so much so that we must be rigid in defense of the present law.
A recent editorial in Surgical Neurology (April 2006, Vol 65, No. 4, pp 416-421) by Charles Fager M.D. notes that spinal surgery claims are the most numerous (42%), most secondary to lumbar spine surgery. Trauma and intra-cranial surgery were next in terms of number of claims. Interestingly, and unfortunately for us, more than 40% of the claims were considered either non-defensible by defendants or had merit for the plaintiffs, with most of the claims with merit being settled, avoiding the trial process.
Because of the above issues, I was originally excited about an article in the May 2006 Bulletin of the American College of Surgeons (Vol.. 91, No. 5 pp 12-15) by Philip K. Howard, J.D. In this article, Mr. Howard discussed the feasibility of creation of special health courts which would consist of judges dedicated full-time to resolving health care disputes, providing written rulings and avoiding the tendency for juries to provide sympathy decisions. Since there would be no juries, to ensure uniformity of rulings, the case could be appealed to a new medical appellate court. This originally appealed to me, or as the author pointed out, that under the current system most people donâ€™t sue where there has been a medical mistake, but about 80% of claims are made against physicians who are not negligent (this seems to conflict somewhat with Dr. Fagerâ€™s article).
As this new proposed method appeared promising, I contacted Ben Blackett, M.D., J.D. of Tacoma Washington, whom most of us know, and who is both a neurological surgeon and an attorney. This new juryless method caused him some concern (I hope I am not misquoting him, I believe not) as he pointed out that such a system could be a complete disaster to us if the plaintiff trial bar was able to take control of the judge selection and it would be best if judges were not politically appointed. The trial bar would be very interested and involved in the selection of judges. More importantly, as inconvenient and uncomfortable the present system is, currently we win approximately 80% of the malpractice cases, and there is no promise that this new system would treat us as well or better. We may not at all be happy with such a new system. (Also Mr. Howard was an advisor to ex-Vice President Al Gore in Goreâ€™s â€œReinventing Governmentâ€ initiatives which may give comfort to some, but great concern to many of us.)
In view that this article was featured in the ACS Bulletin, I contacted my ACS representative to see if this was published with the support of ACS policy and hopes of enactment, but no response has been obtained as yet. I represented my concerns, as noted above, and look forward to your comments.
We in CANS serve to represent California neurological surgery and to serve you, our membership. Please forward to me your concerns and suggestions concerning how CANS can better serve you and our specialty. My e-mail is firstname.lastname@example.org; office number 559-440-5081; and home number 559-431-1284, FAX 559-432-6181.
John Bonner, CANS President
3. Report from the Executive Office
a. Work Comp Survey
The surveys sent last month to gather data about access problems related to Worker’s Comp are due by
June 15. The results of this survey will be sent to the Division of Workers’ Compensation (DWC) along with
input from the California Orthopaedic Association who initiated this project. Please contact the executive
office if you need another copy of the survey.
b. Annual Meeting Support
CANS will begin soliciting vendors to participate in the next Annual Meeting in
January 12-14, 2007
and would like to invite some new companies in addition to those who so generously
continue to support the meeting. We would appreciate any leads the membership may have.
4. Work Comp Update
A number of issues surfaced this last month in the Workersâ€™ Compensation arena.
We tend to report these issues with some frequency in this newsletter because a considerable
majority of CANS members treat Work Comp patients and this treatment system at present pays about
the best in
but has the most potentially confusing array of rules and regulations.
Although we have reported that you canâ€™t be forced to care for Comp patients at commercial insurance rates (which generally approximate Medicare rates while the Comp fee schedule is about 200% of Medicare), the recent sale of State Compensation Insurance Fundâ€™s responsibility of having a provider network to the Blue Cross Prudent Buyer provider list apparently has been interpreted by Blue Cross as forcing their Prudent Buyer providers to treat Comp patients and treat them at commercial rates. The CMA got Assemblywoman Fran Pavley to introduce AB 2585 that would allow docs to opt out of the requirement or at least force the insurance company to negotiate a separate contract for Comp care. The insurance companies raised hell about this under the disguise of being worried about patient access when of course their main goal is regimentation and subordination of docs to the success of their business model. The bill was pulled because of numerous amendments by stakeholders and some concern about the legality of the bill as it relates to contract law but Pavley plans to insert the wording in a bill that has already passed the assembly, a maneuver that purportedly buys more time for Pavley to craft wording that satisfies the concerns of docs, labor and Blue Cross. The mantra seems to be it is OK for docs to opt out so long as by doing so they donâ€™t impair an injured workerâ€™s access to care or cause the medical provider network/ Blue Cross to come afoul of MPN regulations regarding breadth and width. We wish the CMA and Assemblywoman Pavley good luck in getting our rights reasonably established but I will hopefully be forgiven for thinking we will come in third.
b. Utilization Review is another cross we docs have to bear when treating injured workers and the California State Senate Labor and Industrial Relations Committee held hearings recently wherein the CMA and various docs lamented how the UR process delays and circumvents treatment felt to be appropriate by specialists such as orthopedic surgeons and neurosurgeons. The Division of Workersâ€™ Compensation (DWC) promised to fine carriers and employers who abuse the UR system. Some of the problem is the occupational medicine practice guidelines which often donâ€™t readily apply to specialist treatment, particularly surgery. Another issue appears to be what I will call the rogue reviewer who imposes his/her biases on the treating physician. I learned of a notable example recently where a CANS member was denied authorization to do an anterior cervical discectomy and fusion to treat a disc herniation with radiculopathy because the reviewer thought a foraminotomy works as well while avoiding a fusion and should be employed. This is not UR , it is philosophy. One wonders if any DWC action will put these philosophers in their place.
c. A California WC judge has ruled that insurers are not required to pay for interpreter services for an injured worker undergoing treatment. The crux of the case was a $7K bill from a language service that was present during a course of physical therapy. I can accept the insurerâ€™s beef about that but the judge also felt his ruling applied to doctor/injured worker interactions as well. The judge felt that the labor code does not provide for the provision of interpreters and that plenty of docs are available to the injured worker who speak the workerâ€™s language so if the worker chooses a treating physician who is not fluent in the workerâ€™s language, it is not the insurerâ€™s responsibility to pay for interpreters. I guess that leaves us to bear this cost. I am happy to know we have lots of Spanish, Korean and Vietnamese speaking neurosurgeons and/or orthopedic surgeons widely dispersed through California so that injured workers can just zip down the street to see a native speaking consultant. I donâ€™t know much about the judge other than he needs glasses to correct his myopia.
d. The DWC also noted that fewer doctors are taking the QME exam and that the number of qualified QMEs is dwindling. A proposed 25% increase in the Medical-Legal fee schedule due to go into effect in July may help the problem. Dumping the AMA Guides as the instrument one has to use for determining permanent disability would help even more.
Randy Smith, M.D., Editor
The newsletter is a mix of fact, rumor and opinion. The facts are hopefully clearly stated. The rest is open to interpretation. The opinion is mine. R.S.
The assistance of Janine Tash and Jack Bonner in the preparation of this newsletter is acknowledged and appreciated.