• Are doctors really fleeing New York because of malpractice costs? Tuesday, October 15, 2013

    During the discussion about raising the limit on compensation for California victims of medical negligence, look for evidence supporting the claims that are made. Before we examine the latest claim, a little background: Since 1975, the amount that those harmed by medical negligence can receive for “non-economic damages” (anything that is not compensation for lost income or medical expenses) has been limited to $250,000, a figure that hasn’t changed in the 38 years since the Medical Injury Compensation Reform Act of 1975 (or MICRA) took effect. That means, among other things, the life of a child, or a retiree, or a stay-at-home parent, or a disabled person unable to work, is valued at no more than $250,000 if the cause of death was medical negligence. The MICRA cap also affects those who lose the ability to have children, or lose their vision, or lose their limbs; it affects those who are severely disfigured or suffer ongoing severe pain. In all of those cases the compensation for their harm was set by politicians 38 years ago, not by citizen jurors who hear all the evidence presented by both sides concerning their specific case.

    California voters may get the chance to correct this injustice in November 2014 if the Troy and Alana Pack Patient Safety Act qualifies for the ballot. This measure would not eliminate the cap on compensation but would adjust it to account for 38 years of inflation, raising it to just over $1 million, under the theory that what was considered “fair” in 1975 should certainly be considered “fair” today.

    Since California became the first state to limit compensation for medical harm, many other states have followed suit — many, but not all. Among the states that do not limit such compensation is New York. That led to the following tweet from the Twitter account of CAPP, the misleadingly-named Californians Allied for Patient Protection, whose board members consist entirely of representatives of the medical and insurance industries:

    CAPP tweet

    The quote is taken from this story linked in the tweet; here’s the full excerpt from reporter Alicia Gallegos:

    …New York physicians are consistently leaving the state because of an unmanageable liability market, said Dr. Sam Unterricht, a Brooklyn ophthalmologist and president of the Medical Society of the State of New York.

    “It’s having a big effect,” he said. “A lot of doctors are retiring, many are leaving the state, and the satisfaction that physicians have in their professional life is pretty much at an all-time low.”

    If Unterricht provided any evidence to support his assertion, Gallegos did not include it in her story. So let’s go looking for some.

    For instance, what if we look at the number of physicians in New York? Is it going down? Here is the data from the American Medical Association:

    NY physicians chartThe number of physicians in New York in 2011, the latest year for which figures are available at this writing, is not only the highest in the past 10 years, it’s the highest ever. New York saw a year-to-year increase in the number of physicians during the past 10 years, with two exceptions: from 2007 to 2008 the number went down by 162 (0.19%), and from 2009 to 2010, during the height of the Great Recession, the number decreased by 213 (0.25%). But those minuscule losses have been more than recovered since, with a 2.4% increase in the number of physicians from 2010 to 2011.

    Bottom line: if any New York doctors are retiring or leaving the state because of medical malpractice issues, they’ve been replaced, and then some. There’s no evidence of the “big effect” Unterricht asserted, Gallegos didn’t challenge, and CAPP wants you to believe.

    But is 88,394 doctors a lot? After all, a lot of people live in New York. So let’s look at the number of doctors per capita. Here, again using AMA figures, are the number of doctors per 100,000 residents in several states, including New York and California:

    Per capitaNote that New York — which does not limit compensation for victims of medical negligence — has 30% more doctors per capita than California, which has the nation’s most restrictive cap on such compensation. And the other states represented in the chart (Connecticut, Pennsylvania, New Jersey, Minnesota, Oregon, Illinois and Washington) all, like New York, do not limit compensation for medical harm. All have more doctors per capita than California.

    This makes it hard to construct a case that doctors are driven from states that don’t limit such compensation to states like California that do, and further that raising the cap in California would drive doctors elsewhere.

    The conversation about the effect of medical liability on the physician population came about because of the release of the latest annual survey of medical malpractice premiums by Medical Liability Monitor, which showed premiums dropped in 2013 for the sixth straight year. But the highest premiums for ob/gyns are in New York: specifically, for ob/gyns in Nassau and Suffolk counties, in suburban New York City, covered by Physicians’ Reciprocal Insurers. They pay 14 times as much as ob/gyns in mid-California covered by the Cooperative of American Physicians.

    Is that proof that California’s caps on compensation lead to lower malpractice insurance rates? Not necessarily. The lowest rates for internists are in Minnesota — a state, like New York, that does not limit compensation for victims of medical harm. Meanwhile, the highest rates for internists and general surgeons are in Florida, which has a cap.

    The truth is there is no correlation between the existence of caps on damage awards and medical malpractice insurance rates. One reason rates in New York can be significantly higher than in California is New York has not had insurance reform to protect doctors from unreasonable rates. Under California’s Proposition 103, approved by voters in 1988, the state’s elected insurance commissioner must approve malpractice rates and can order reductions in proposed increases that are not justified by the underlying financial conditions. In states like New York, insurers can charge whatever the market will bear, even if rate increases go to increase corporate profits rather than to compensate those harmed by medical negligence.

    By the way, this is not the first time CAPP has commented on the state of medical providers in New York:

    CAPP tweet 2What CAPP doesn’t say is in Texas, where MICRA-style limits on compensation were enacted 10 years ago, more than half of the state’s counties — 150 of 254 — don’t have an ob/gyn. Of course, that doesn’t mean having caps leads to counties without ob/gyns, any more that CAPP’s implication that not having caps leads to counties without OB/GYNs. Some places in America are too unpopulated to support an ob/gyn and too remote to attract one. Texas has plenty of those places…and yes, there are some in rural areas of upstate New York, too.

    –J.G. Preston

    J.G. Preston is press secretary for Consumer Attorneys of California (CAOC), an organization whose members include some attorneys who represent victims of medical malpractice. CAOC supports an increase in the MICRA cap on non-economic damages. Some members of CAOC are on the board of directors of the group that funds ProtectConsumerJustice.org.

  • Even without malpractice caps, New York has added more doctors per capita than Texas
  • If medical malpractice insurance rates are driving doctors out of business, why are there more doctors?
  • Where’s the evidence that doctors flock to states with caps on medical malpractice damage awards?
  • Not enough doctors? Blame Medicare, not malpractice premiums
  • Searchable database of disciplinary actions, malpractice judgments against California doctors

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2 Responses to “Are doctors really fleeing New York because of malpractice costs?”

  1. Allen P. Wilkinson, Esq. says:

    Ever since the first medical malpractice “crisis” in the mid-1970s, doctors have been using scare tactics to get noneconomic damages (things like pain and suffering, loss of enjoyment of life, having to live with a disfiguring scar on the victim’s face). They have threatened to leave the state in droves to go a state that does not have a cap on noneconomic damages, stop practicing medicine, stop doing high-risk procedures (such as delivering babies), or change their specialty to a less risky one. The real reason for the medical malpractice crisis is the fact that so much malpractice is being committed on innocent patients. In 1999, the Institute of Health published a book that stated that over 95,000 patients were needlessly dying in hospitals each year due to medical errors.

    Caps on damages are not the answer. Better training of physicians and surgeons as well as nurses and other health care providers, as well as better supervision and more frequent reviews of their competency is what is needed. The problem of doctors committing malpractice is much worse than people believe. Only small (less than 5 percent) of patients who have been injured by a doctor’s carelessness sue. Rather than honing their skills to avoid malpractice in the first place, doctors spend millions of dollars on a publicity campaign blaming greedy lawyers and frivolous lawsuits with no evidence to back it up. There are very few frivolous medical malpractice lawsuits, as medical malpractice cases are among the hardest to win even in the face of an obvious error, and are extremely costly, often costing $100,000 to prepare and try. Injured patients are afraid to take on the medical industry, so many incompetent doctors continue to practice and make hundreds of thousands of dollars.

    Unfortunately, the medical industry has a much larger fund to spend on scaring patients and denigrating plaintiff lawyers. The medical industry was so successful in its campaign to paint the trial lawyer as the villain that organizations such as ATLA and CTLA had to change their names to “consumer attorneys.” We have to fight back against the medical industry and accept those cases which will not bring in much money but show the medical industry we’re willing to stand up to them. And we need to put as much pressure as possible on legislators to get noneconomic damage caps set in 1975 to the present time.

    Allen P. Wilkinson
    Attorney at Law

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