MMS Applauds Bill To Ease Medical Liability

WALTHAM — Physicians with the Mass. Medical Society (MMS) are applauding the action of the Legislature’s Joint Committee on Insurance, which has advanced legislation to curb the skyrocketing cost of physicians’ medical liability insurance.

“The legislation is a very important step in the right direction, and we thank and congratulate Rep. Ronald Mariano for his leadership on this vitally important health care issue,” said Thomas E. Sullivan, M.D., president of the medical society, which represents more than 18,000 physicians and medical students throughout the

Commonwealth.

“We are grateful that the committee listened to physicians. It understands the impact that this crisis is having on patients’ access to care, on physicians’ practices and their ability to deliver quality care, and on the rising cost of health care. While the bill reported by the committee does not provide for everything we think is needed to address the problem, it is a significant milestone. We will continue to work for long-lasting solutions to this crisis,” Sullivan said.
The legislation endorsed by the committee includes provisions to:

• Eliminate “joint and several liability,” making defendants liable only in proportion to their degree of fault. Currently, all defendants are equally responsible to satisfy a judgment, no matter who is principally responsible. The change would mean that each of the defendants would not pay any more than their individual share of responsibility;

• Index pre-judgment interest rates to the 52-week U.S. Treasury Bill. Now, plaintiffs receive a fixed 12{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} annual rate on the dollar amount of any judgment, going back to the date of the filing of the claim;

• Require that physician expert witnesses in malpractice cases be licensed and board-certified in the same or similar specialty as the defendant physician. Experts who produce opinions in the medical malpractice tribunal phase of a case must also be available to testify in the trial phase. Currently, no such requirements exist;

• Enhance patient safety by requiring liability insurers to report data on claims and payments due to medical negligence to the Commonwealth’s Betsy Lehman Center for Patient Safety and Medical Error Prevention, to assist in the development of patient-safety initiatives; and

• Establish a special commission to study the feasibility of special courts for medical malpractice cases.

The bill does not include a firm cap on non-economic damages, or “pain and suffering,” a legislative provision that medical societies across the country have argued will be the most effective in easing soaring rates. Massachusetts state law currently has a ‘soft’ cap of $500,000 on non-economic damages, which can be bypassed by judges or juries. All economic damages, however, such as medical care and lost wages, are covered in full.

The soaring cost of professional liability insurance has been an ever-increasing burden for physicians across the nation for several years. In Massachusetts, average insurance costs for physicians have more than doubled since 1992, according to the recently released MMS Physician Practice Environment Index. For the last three years alone, Massachusetts physicians have experienced double-digit average rate increases of 14{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5}, 12.5{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5}, and 20{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} in liability insurance.

The impact of the rate increases is especially significant in such high-risk specialties as obstetrics and neurosurgery. According to Medical Liability Monitor, a newsletter covering the medical professional liability insurance and risk management industry, the average insurance premium for ob-gyns in Massachusetts last year was $101,462, the 14th-highest in the nation, compared to a national average of $61,545.

Faced with such skyrocketing premiums, many ob-gyns in Western Mass. and in suburban Boston have stopped delivering babies or otherwise curtailed services to reduce their liability costs. Meanwhile, many neurosurgeons have seen their annual liability premiums cross the $100,000 mark.

Medical liability costs have had a dramatic impact on practice patterns for other specialties. Last year’s MMS Physician Workforce Study found that medical liability insurance costs have affected physicians’ decisions about potential career changes, particularly among neurosurgeons, ob-gyns, vascular surgeons, general surgeons, and orthopedic surgeons. Nearly one-third (32{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5}) of practicing physicians surveyed said they were either planning or considering a career change because of the deteriorating practice environment in Massachusetts.