Dr. John A. Bastulli, AMC/NOMA’s vice president of legislative affairs, was recently invited by The TurnAround Management Association, the only international non-profit association dedicated to corporate renewal and turnaround management, to discuss the topic of medical liability and tort reform during a one-hour debate titled: “The Healthcare Crisis: Is Tort Reform the Right Medicine?”
More than 100 turnaround practitioners, attorneys, accountants, investors, lenders, venture capitalists, appraisers, liquidators, executive recruiters and consultants attended the debate held on Wednesday, Nov. 10 at the Marriott in downtown Cleveland.
Others on the panel included: a medical malpractice attorney, an executive from a health care association, and an accountant with a firm representing businesses. Panelists were asked to discuss current tort reform law in Ohio. The malpractice attorney stated that in his opinion proponents of caps on non-economic damages always try to give the impression that these caps do not mean a lot since the plaintiffs are being compensated for medical bills and expenses. He explained this is not what his cases are about. There is a loss of functionality, loss of sight as well as pain and suffering that must be accounted for somehow. He indicated passage of the tort reform laws were “premature” since they had also established the Ohio Medical Malpractice Commission through the Ohio Department of Insurance (ODI) at the same time “to study the issues.” He stated the study should have taken place before the reforms were put into legislation.
Dr. Bastulli responded by stating the AMC/NOMA has had numerous opportunities to meet with the ODI, and it is important to note that not only is ODI putting together data on the issue, but they are also trying to write a proposal for a patient compensation fund as well as looking at other forms of alternative dispute resolution such as mediation or arbitration. In addition, it has been clearly shown that caps on non-economic damages as well as attorney contingency fees do have a definite impact on curbing medical liability costs. Bastulli said, “As far as the current tort reform law goes, there is still a need to test the legislation at the Ohio Supreme Court (OSC) level.” He said, “There are 10 cases or more out there working their way through the courts. We need to see if the OSC will uphold this legislation. In the past tort reform had passed in Ohio only to be overturned by a previous OSC. The staffs running these medical liability insurance companies are waiting to see what these court challenges will bring in Ohio.”
Then the moderator directly asked Dr. Bastulli: “What are the consequences on quality and access to care due to the medical liability crisis?
Dr. Bastulli stated the AMC/NOMA found escalating costs of medical liability premiums increases the overall costs for the entire health care system. He said access to care is also becoming an issue as physicians retire, leave the state or stop conducting high-risk procedures such as OB/GYN or stop taking ER call. He commented, there are plenty of examples of physicians exiting the state and the ODI tracked more than 180 physicians who have done so. He said many physicians outlined how they reduced their scope of practice or left their practice altogether. There were also examples noted of emergency rooms unable to get physicians to take call. So, he said, quality of care is definitely impacted through lack of access to care.
The attorney quoted studies that showed that there has been no reduction in doctors due to medical malpractice costs, and he also noted that a recent article in our local news indicated that the amount of physician licenses are actually going up in Ohio. Dr. Bastulli that the numbers published in the news did not reflect the real data and if you drill down on the numbers published by the Ohio State Medical Board, what was quoted in the newspaper was completely incorrect. The numbers as published included podiatrists, massotherapists, anesthesiologist assistants and other health care practitioners, not just physician licensees in Ohio. Bastulli further comments that in fact the AMC/NOMA reviewed the physician number data as published and sent a letter to the editor which was published – that clearly showed that the published data was flawed.
The attorney stated that most lawyers believe the true solution to this problem is to reduce the percentage of medical malpractice costs by having real insurance reforms in place. He said insurance companies are exempt from antitrust and the sole regulator for many medical malpractice insurance companies is through the ODI in Ohio, which he feels is an under-funded department with leadership made by political appointments. He then mentioned Proposition 103 in California and indicated this statute, which passed in California, was the real reason rates went down in that state not the fact that MICRA was implemented.
Dr. Bastulli interjected and said that the tort reform bill originally introduced in Ohio was modeled completely after MICRA, the California legislation which has worked to bring down medical malpractice rates. He said one of the main components stripped from the Ohio bill, important in MICRA, was the cap on attorney contingency fees. He indicated the sliding scale set up in MICRA caused more money to go to the plaintiffs and prohibited attorneys from filing frivolous suits. Dr. Bastulli stated that Proposition 103 was targeted to California’s auto industry and not implemented until 1988, many years after MICRA started and some time after California saw a trending downward of the medical malpractice rates. In truth, it was the MICRA legislation, not Proposition 103 that brought down the rates in California. Dr. Bastulli closed by stating physicians in Northeast Ohio are in a medical liability crisis and, he believes, caps will ultimately help the situation.