Dr. Bastulli (JB): Good morning.

JM: I understand you are an anesthesiologist at Saint Vincent Charity Hospital. Has your practice been affected by this crisis?

JB: As all other physician practice have been - we have been affected as well because the cost of medical liability premiums we know have increased in our practice as well as the surgeons that we work with. We have been working very hard on the medical liability insurance crisis - we believe that issues of medical negligence should be handled in a fair and equitable fashion while emphasizing quality of care. We are also working on the legislative front trying to get reasonable medical liability legislation passed that will stabilize medical liability premiums.

JM: A bill was passed last year in Ohio - was that reasonable?

JB: It was a good start. We need some other items passed. It did not have the caps on non-economic damages that we wanted nor did it contain any caps on attorney contingency fees. Both items are very important in controlling the liability insurance issue and you can just look at the success that California has had with their legislation - it did contain those two important components.

JM: Okay - so Ohio's tort reform did have caps of some kind?

JB: Well it has caps on non-economic damages but the level is higher than what was originally recommended as well as being higher than what is contained in the California legislation - they have a cap of $250,000 dollars on non-economic damages. However, there is no cap on economic damages - loss of income or on medical expenses. We are talking about non-economic damages, which can be very subjective - they are not an objective measure. Again, California has a cap of $250,000. We believe that our tort reform initiatives are fair. That arbitration can be very helpful in settling these issues. Educating our physicians and the public that when these types of issues come up in legislation - how they can help us when we are trying to get this legislation passed.

JM: We being the AMC/NOMA - what exactly is the AMC/NOMA?

JB: The AMC/NOMA is the recognized organization - the physician component in Northeastern Ohio. We have been in existence since the mid-1800's and we speak for physicians in Northeastern Ohio. We represent many physicians and we take their concerns to Columbus but we also participate with community activities in promoting health care for the people of Cleveland.

JM: Does the Academy keep any statistics about how many doctors leave because of malpractice insurance premiums?

JB: We have been doing that for some time - we became aware of the malpractice problem about 3 years ago and started to work on it. Our most recent survey shows some very distressing things. Number one if the liability crisis continues to escalate - than many physicians will start to reconsider the scope of practice/services that they provide to their patients. We believe that they will cut back on their services, cut back on their hours in their office and start to see fewer patients. Less patients that do not have health insurance, less Medicare patients, less patients overall as they start to cut back on their expenses as well as start to cut back on their risk. Our surveys tell us that physicians are beginning to do that now and as you know from the Plain Dealer article on the physician that left Cleveland we also understand that our physicians will begin to leave the county because of the problems.

JM: Any idea how many have already?

JB: That can be hard to track. We know that there have been a number of them based on the information we have collected. But it is hard to track because most physicians won't do what this physician did - like go to the newspaper - they will just quietly leave.

JM: The doctor we talked about earlier in the program, the doctor that was in the Plain Dealer article - left the state - his malpractice insurance premiums went up, as I understand it - even though he had never lost a case - he had been sued but never lost.

JB: Right - when malpractice companies look at a physician they not only look at the losses but they also look at how many times they have been sued because the insurance companies then have to spend money in providing a defense for these claims.

JM: And sometimes settling the claims.

JB: Yes, and this can be very expensive. Another item that is of importance to us is arbitration. We have found that in states that have arbitration - binding arbitration to settle these types of issues - that the cases move through the system more rapidly - and the patients get a higher percentage of the settlements. So we are also looking at mandatory arbitration.

JM: Is there any federal effort that would be uniform across the 50 states?

JB: Yes, federal legislation has already been considered - and it would pass the House - the problem is that when it gets to the Senate we do not believe that it would be filibuster proof in the Senate. So this administration is in favor of a $250,000 cap on non-economic damages - and they some interest in looking at caps on attorney contingency fees as well as to reduce the cost to the system through arbitration. We are confident it would get through the House but we are not confident it would get through the Senate because it would not have the 60 votes to make it filibuster proof - and as you know the Senate can filibuster until an issue is dead.

JM: It isn't just arbitration and tort reform though - isn't the heart of the matter frivolous lawsuits being filed and not separated from those that are legitimate? The courts are being inundated; anyone can sue over anything so courtrooms and judges are being inundated with frivolous lawsuits?

JB: Well that is part of the problem. We have looked at the frequency of cases and though it has been somewhat stable what has increased in a quantum manner is the settlements and the awards. So, frequency is a problem how many times you are sued as well as the level of damages and it is the awards and settlements that have continued to escalate and caused this problem.

JM: But you have to keep an open mind and walk that fine line between protecting physicians from frivolous lawsuits and high damage awards - unjust - and protecting people's rights - I mean there are mistakes that are made that have to be compensated.

JB: We are not looking to cause someone to be unable to seek redress for medical negligence or malpractice. But we know that there are ways that it can be done to improve the access to health care. We see that hospitals are unable to provide certain services because they cannot get high-risk specialists. We know that in states that have effective tort reform they have more physicians per population than those states without effective tort reform. Statistically significant. So we know that as the insurance premiums continue to increase you will see less service provided by hospitals and there will be fewer physicians to provide these services - so it is a balance. It is a balance of continuing to provide the services that society needs while protecting the rights of an individual to seek redress if there is an issue of medical negligence or malpractice. We have a seminar coming up in March - March 26th - where we will be bringing in some national experts regarding the liability crisis - to speak to issues of quality of health care, medical errors - how can physicians put into place best practices - the protocols that they develop to be based on evidence based medicine to reduce medical errors. And last but not least to address the issue of defensive and the cost of defensive medicine.

JM: What is defensive medicine?

JB: Defensive medicine are tests or procedures that are ordered by physicians that they believe are probably unnecessary but are ordered in order to protect them in case they are sued at some point down the line. Whether it is a suit a year from now of five years from now. And surveys have showed us from physicians that they order more tests than they believe are necessary, they know of physicians that order more tests than they believe are necessary to protect themselves from liability. The government has shown in studies that the government could save anywhere from $35 to $50 billion dollars a year just if reasonable caps were passed and if physicians were to stop practicing such defensive medicine. That alone could fund the Medicare prescription drug program.

JM: Where can the initial move be made to stop this cycle of escalating prices?

JB: Well, we have seen is that the states that have passed tort reform and now it has matured and it has had some time to have its effect and has kept rates down.

JM: And so defensive medicine goes away?

JB: Well, defensive medicine is much less because physicians now realize that if there is a problem, if there is a lawsuit it may not mean that it will ruin their entire career and all their assets. And there are many states that approach it from a much more equitable and fair position - and that is what we are trying to do in Ohio - we are trying to get to a place where the settlements of these cases is timely, fair and equitable to all parties involved and over time you will see less defensive medicine practiced. There has to be a way to interrupt the cycle, and we believe the best way to interrupt the cycle is with effective tort reform.

JM: Do you have legislation pending in the Ohio legislature?

JB: We are putting together a piece of legislation that will address the issue of arbitration - or alternative dispute resolution. There are other mechanisms that have been talked about such as medical courts and so forth - those are fairly radical moves. Mandatory arbitration is a well-known phenomenon it is used in other businesses all the time.

JM: Basically you would have maybe 2-3 mediators that are generally judges with some kind of medical expertise?

JB: Right. And it is someone that can usually be agreed upon by both the plaintiff and the defendant and they make a ruling and they decide on the damages based on the overall case as well as the parameters that they are given according to state legislature.

JM: Is that ruling binding?

JB: Yes, medical arbitration can be binding.

JM: So you cannot go to court if you are not satisfied?

JB: Right, you have to take whatever the decision is in arbitration.

JM: That is something that you hope to get to the legislature when?

JB: We will be working on it and we hope to be able to present it sometime this year.

JM: Will lawmakers buy it?

JB: Well I think they are interested in trying to find solutions other than what currently exists. Because once you go into court who knows what you are going to get. Many of the decisions are not based on fact but are based on the theatrics of the plaintiff's attorney. And many of the awards that are given by a jury are done because they see the insurance company as a multi-million dollar industry so it is no sweat for the jury to give big awards because after all the insurance company has the money and that is the culture that has put us into the situation we are in today. I believe that we need decisions that are based on fact and reason, and what is the best overall solution for society in general. Because as liability premiums continue to go up, everybody pays for it in lost wages, taxes higher premiums and higher co-pays. A Price-Waterhouse study recently showed that in our system the cost of defensive medicine alone adds 5-7% to the cost of healthcare. So if the liability were changed in such a manner to be more efficient it would reduce costs it would reduce overall costs to the entire healthcare system.

JM: Seems like a no-brainer.

JB: Well, you would think so. But you will continue to have issues with people that will claim that to have binding arbitration will impact on someone's right to a jury trial. And I believe that it is a system that can be developed that can be fair to everyone - come up with a system that is quicker and reduce the overall costs to the system. We still need some work on other forms of legislation but binding arbitration can work. I do not believe that it is infringing on someone's rights per se. Our government in fact has taken issues and modified them in order to benefit society. Take voting for instance. Our rights to vote have changed. It now includes everybody. As long as you are an American citizen you can vote - you have to be registered, you can only vote in your precinct. You can only vote once of course except for Chicago you actually have to be alive to vote. So the country has a history of modifying what we perceive as basic rights in order to proceed with a more orderly society. Imagine if there were no regulations on voting - imagine what things would be like.

JM: And you compare that to medicine today?

JB: Well I use it as an example of the evolution of our society - how we evolve over time in order to maintain the overall benefit to society. If physicians continue to leave practice, if young physicians do not stay in the area, if hospitals lose staff and services society will suffer over time - just as society would have suffered over time if still the only person that was able to vote would be a white man that owned property. Society would suffer. Take our right to own property - imagine if there were no rules or regulations governing one of our most prized possessions - our automobile. Imagine if there were no laws governing automobiles. That evolved over time and this medical liability situation must evolve over time - it must - or it will have a negative impact on access to quality health care at a reasonable cost.

JM: We will continue to follow the efforts of the Academy of Medicine of Cleveland and their legislative chairman Dr. John Bastulli on the issue of medical malpractice insurance reform. Dr. Bastulli thanks for being with us today.

JB: Thank you.