Doctor, lawyer, tort reformer offer views on medical malpractice reform

By Amelia Flood | Oct 8, 2009

While the battle over healthcare reform rages from town halls to the halls of Congress, those with stakes locally agree that change is needed.

But a doctor, lawyer and tort reformer interviewed by the Record have different views on how medical malpractice reform should fit into the debate.

Retired Surgeon: Doctors lose even when they win lawsuits

For Dr. Robert Hamilton, a former surgeon from Alton, medical malpractice litigation exacts more than just financial costs.

During his years as a general and vascular surgeon, Hamilton said he was sued several times. While those suits never ended in a settlement or a verdict against him, he said that doctors who are sued lose even if they win a lawsuit.

"It just increases the stress level in an already stressful environment," Hamilton said. "The bigger concern is how it effects the way people practice [medicine]. After years of doing that, you lose sight of what is necessary and what is safety."

Hamilton practiced medicine for more than three decades before retiring in 2002.

He contends that doctors, wary of being sued, will routinely order tests and implement protocols that are unnecessary and potentially costly to insurers and patients because doctors worry about the threat of lawsuits.

Lawsuits are a necessary tool, Hamilton said, for patients who have legitimately suffered from medical negligence. However, he would like to see more comprehensive and effective screening of suits that are filed.

"I think it's important to weed out the bogus suits," Hamilton said. "A lot of times something happens that the patient or the patient's family didn't expect to happen or no one expected to happen. And then they're looking for a culprit."

He'd like to see the establishment of an expert panel to evaluate the merit of suits filed before they continue on in the court system, similar, he said, to how a grand jury operates. He points to a similar panel that exists in the Veterans' Administration system as a potential model.

Without reform, Hamilton said, medical specialties with higher suit risks and higher malpractice premiums, may be unattractive to medical students, which could lead to shortages in those areas. Doctors then become concentrated in certain places, like cities, leaving more rural communities without health care providers, he said.

He also believes caps on medical malpractice damages need to stay in place in Illinois. Currently, a 2005 Illinois law capping non-economic damages at $500,000 for doctors and $1 millions for hospitals is being challenged on constitutional grounds before the Illinois Supreme Court.

Malpractice Lawyer: More med mal should go to arbitration

Swansea attorney Thomas Keefe Jr., a 30-year veteran of medical malpractice law, counts doctors among the blessed professions.

However, he said, that's no reason to afford them what he perceives a "special protection," by capping damages in medical malpractice cases.

He said that many of the reforms being proposed are unconstitutional. He said they distract from the real culprits in the high cost of American healthcare.

"One of the things that I have always found very disturbing about caps is that they are basically unfair," Keefe said. "And when I say unfair, I'm talking about the notion that our justice system is supposed to be fair. And yet we're going to have a justice system that gives [doctors] more protection than it does a truck driver with an eighth grade education?"

Keefe credits the majority of doctors with doing "a magnificent job." He argues that many malpractice cases would not come before the courts if state licensing boards and other regulators were more inclined to punish physicians if needed.

Attorneys too, he said, must be professional and carefully screen medical malpractice cases that come to them.

"Doctors have every right in the world to be angry and upset when they are hit with a lawsuit," he explained. "But morally, a good lawyer will not bring a case that is not grounded in fact."

Medical malpractice suits make up about half of his practice, Keefe said. But, he continued, if he sees 40 prospective clients with medical malpractice cases in a month, he may only file one. That's due to the screening mechanisms already in place and the high cost of getting a suit off the ground, if it even has merit.

Keefe questions the call for more screening mechanisms like expert panels. Illinois already requires medical malpractice suits to go to an expert practicing in the same field as the doctor sued in the form of certificates of merit, he said.

According to Keefe, many physicians won't review cases and risk stigma in the medical community, even if the file demonstrates merit. That cuts down on the number of cases that come to the courts. What it costs attorneys to get case reviews also is prohibitive to filing them because of what they have to pay for expert review and other expenses.

"Next thing you know, I'm 20 grand in the hole," Keefe explained. "It's just dumb if you're greedy to file bad lawsuits because you'll lose and you'll hemorrhage money."

A reform Keefe would like to see in the legal realm is for more medical practice suits to go through the arbitration process. He argues it would save costs and time, while allowing plaintiffs who would not be able to afford the cost of bringing a suit to trial to have their claim resolved.

However, in the arbitration issue and the health care debate at large, Keefe believes insurance companies are the "800 pound gorilla in the room" blocking needed reforms.

He said that once insurance companies were made more accountable due to Illinois' 2005 reforms, competition increased and medical malpractice premium costs went down.

Reforming how insurance companies do business, he said, would do more for bringing costs down than capping litigation damages would. And by turning the overall healthcare debate into a medical malpractice issue, Keefe said, insurance companies are pitting doctors and lawyers against one another.

"The truth is the doctors, good doctors, the first thing they care about is their patients," he said. "And the first thing good lawyers care about is their clients. We should be working together."

At its core, he said, all the talk is about the need for something to be done about rising health care costs.

"It is an extraordinarily complex issue," Keefe said. "Our country desperately needs health care reform and everybody may have to give a little. It's very hard for me to accept what we may be giving a small part of our society at the expense of a larger part of our society who may not be able to speak for themselves. Nobody wants the money. Everybody wants their health."

Tort Reformer: Defensive medicine is out of fear of litigation

From a tort reform standpoint, medical malpractice reform is essential and Illinois has long way to go.

Ed Murnane, president of the Illinois Civil Justice League, said "runaway" medical malpractice suits are a key part of the overall healthcare debate, in Illinois and nationally.

He said he's seen the effects of doctors' fears of malpractice suits firsthand this year during his own hospital visits, claiming some of the measures and tests done during those visits were "defensive medicine."

"They're done because [doctors] are trying to protect themselves," Murnane said. "I think the reason they do defensive testing is this fear of litigation."

The ICJL studies lawsuit trends statewide. In 2004, it released a report on medical malpractice litigation in the Metro-East entitled, "The Dirty Little Secret."

In the report and articles from the same year from the St Louis Post-Dispatch, insurers were spending $1.47 for every insurance premium dollar they received. Doctors in the area were being sued at twice the Illinois state rate.

Prior to the 2005 reforms, the study showed increases in medical malpractice suit filings of more than 10 percent. The study estimated that half of the Metro-East's then 950 doctors had been sued as individuals or as part of a practice from 2000 to 2004.

However, from 1999 to 2003, when the study looked at suit outcomes, 85 percent of the two counties' malpractice claims ended without payment.

Although the costs of defensive medicine are touted by reformers, Murnane acknowledges that there is no clear data about their costs. However, he believes that if reform abates a doctor's fear of a lawsuit, the extra testing would not be necessary and its costs would not be passed on to insurers and patients.

Citing the 2004 study, Murnane said he did not believe that most medical malpractice suits were filed because a patient had been truly harmed, rather it was a trial attorney looking to cash in.

"The trial suits are fishing suits," Murnane said. "They [trial lawyers] might file ten suits and they strike it rich on one."

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