Autumn 2003 President’s Message Raymond Pollak MD, FACS, FRCS I am pleased to provide the membership with a short report on the Chapter’s activities this past spring and early summer. It has certainly been an eventful period. Our foremost efforts have been directed at alleviating the problem of the spiraling costs of liability insurance. Together with the support of the Illinois (Downstate) Chapter and their President, Lorin Whittaker MD, FACS, we continue to try and work with the Illinois Trial Lawyers Association to provide some relief to our combined membership. Thanks to the Illinois State Medical Society (ISMS), I was invited to some of their strategic planning sessions on this matter. ISMS also invited me to attend the meeting with President Bush in Chicago this June, and I was pleased to represent the Chapter at this important occasion. Despite the recent setbacks in Washington, I believe we will be able to achieve some meaningful relief locally. The Council and I look to the membership for your continuing support and advice as we move forward in this matter. The Annual meeting of the Chapter was held this past March at the College and was well attended by Chapter members. The program content and invited speakers provided much useful information and our thanks go out to Alejandra Perez-Tamayo MD, FACS and her sub-committee for arranging this event. At the meeting, we bid farewell to retiring Council members Pedro Poma, MD, FACS and Keith Millikin, MD, FACS and reelected Steven De Jong, MD, FACS and Edward Abraham, MD, FACS. A new elected member of the Council is Kenneth Printen MD, FACS, who is also the President-Elect of Illinois State Medical Society. The Chapter was pleased to host the Mock Oral Board examinations at the Chapter Offices in April. This is the second year of this well received Chapter event. Our thanks go to the Past President, Vijay Maker MD, FACS for his efforts to insure the success of the examination. To encourage newly elected Fellows to become involved with the Chapter, we have invited the successful initiates to attend a Council meeting and provide us with creative and constructive input. I have also been invited by the College to be a Marshal at the initiation ceremony in October at the Clinical Congress and will represent the Chapter with pride. Lastly, the membership should be aware that the Council membership represents a wide variety of surgical interests and disciplines. Their efforts on your behalf and on behalf of the patients we serve are often not given enough recognition. I want to acknowledge their many and varied contributions and continued support of the Chapter’s mission. Have a healthy, relaxing and safe summer and please make plans to attend the Clinical Congress of the College in Chicago later this October. Expert Witness Pedro A. Poma, MD, FACS Current medical liability laws and procedures attempt to protect the community by ensuring reasonable medical care. Several studies have demonstrated that despite increased costs, our liability system does not address the needs of potentially affected individuals nor improves quality of care. The public considers human physiology, physiopathology, disease progression, prognosis, individual variations, procedures risks and benefits, and the uncertainties of decision-making, complex issues for the average person. Traditionally, a jury of peers judges citizens. This tradition does not apply to physicians with medical liability cases at civil courts. And, even though, inclusion of physicians and other health professionals in these juries might appear reasonable—the most educated persons to understand the issues, our current system selectively excludes physicians, other health professional from juries that will consider medical liability cases. Our current tort system must rely on expert witness who will explain to the jurors the complexities of the case. The expert witness relying on the personal experience will describe to the jurors relevant standards of care—what a reasonable physician would have done in a similar situation at the time of the occurrence. However, experts like anybody else are subject to memory biases (“Monday morning quarterback”), and empirical studies have shown that this bias favors what is currently considered appropriate (i.e., to have done a procedure which today has become accepted routine). Since 1993 the US Supreme Court have requested judges to serve as gatekeepers of the information admitted to court by evaluating the underlying science of the testimony (i.e., how are these concepts accepted by the medical community, peer reviewed publications, errors). These guidelines are moving now into state courts, but some states do not require judges to follow them. Cross-examination of the witness by the other side offers the alternative in this system. However, the courts should relied more on statistical data about physician performance and evidence-based guidelines in the area in question rather than experts’ opinions usually subject to bias. Meanwhile, members of diverse medical and surgical organizations have brought concerns about the quality and ethics of certain physicians who act as experts. Court proceedings are public record and members can review such testimony. Currently, several organizations have begun evaluating these testimonies and in some circumstances, members have been disciplined according to their bylaws. The Council of Medical Specialty Societies has developed expert witness guidelines. The American College of Surgeons, The American College of Obstetricians and Gynecologists (ACOG), and several other medical groups have adapted them. These guidelines include recommended qualifications for experts: current valid license and board certification, specialty and demonstrated competence in the subject of the case, familiarity with the standard of care during the alleged occurrence, active involvement in clinical practice or in the subject matter of the case when the opinion is given (ACOG recommends within 5 years of the testimony), relevant CME and willingness to disclose the proportion of time involved serving as witness, fees received, and times served for defendants or plaintiffs. There are also behavioral guidelines. When appropriate, physicians have an obligation to serve as impartial expert witness; they should not advocate either side in legal proceedings. Physicians should review the facts of the case, distinguish between negligence (substandard care that resulted in harm) and unfortunate medical outcome (recognized complications resulting of medical uncertainty), be aware of the standards prevailing during the period of the alleged occurrence, be prepared to state whether their testimony is based on personal experience, specific guidelines, or evidenced-based, the level of acceptance by the profession, and present acceptable alternative views. Expert compensation should be related to efforts and time spent by the physician and not related to the outcome of the case. The ACOG recommends that Fellows serving as expert witness to sign an affirmation document (this document emphasizes these guidelines). The time may have arrived for all of us to work for the acceptance of concept of a court expert witness rather than for either side of the question. Both Sides In Tort Reform Debate Use Statistics In Battle This year the battle over tort reform has been extremely heated in the state legislatures. One of the more interesting aspects of that battle has been the war of studies touted by the trial lawyers and the medical community. The trial lawyers are trying to prove that caps on non-economic damages do not affect liability insurance premiums and the physicians are trying to show that caps will help solve the crisis. Both sides are trying to show that the public supports their side. This article will discuss some of the research that is being used in the state legislative arena. The most recent study pertaining to the benefits of caps on non-economic damages was developed by Milliman USA. It shows that from 1990 until 2001 the average medical liability loss per physician was lower in states with caps. The loss per physician in California was 52% of the national average. The loss in other states with caps was lower as well (Indiana (86%), Colorado (69%), and Maryland (64%)). States without caps had a higher than average loss: Florida (136%), Illinois (144%), New Jersey (131%), New York (156%), and Pennsylvania (171%). A report released in March 2003 by the United States Department of Health and Human Services describes the growing crisis caused by escalating insurance premiums. The report states that “Over the last two years, states with limits of $250,000 or $350,000 on non-economic damages have seen average combined highest premium increases of 18%, but states without reasonable limits on non-economic damages (in states representing almost half of the entire United States population) have seen average increases of 45%.” The report concludes that “reasonable limits on non-economic damages would reduce the amount of taxpayers’ money the Federal Government spends by $28.1-$50.6 billion per year.” A poll conducted for the Health Coalition on Liability and Access showed that 76% of respondents “support a law that guarantees full payment for lost wages and expenses, but reasonably limits awards for non-economic damages. Three-quarters of those surveyed favor a limit on the amount of money personal injury trial lawyers can collect from the settlements awarded to their clients.” A poll conducted by the Wall Street Journal found that 58% of respondents favor tort reform legislation and only 16% oppose it. More specifically, 48% support a $250,000 cap on non-economic damages and only 26% oppose such a cap. The AMA sponsored a similar poll and found that 62% favor H.R. 5 -- the current tort reform bill in Congress that has a $250,000 cap -- and 21% oppose the bill. A Gallop Poll found that 72% of respondents favor limiting damages for pain and suffering. In a study of Blue Cross/Blue Shield companies it was determined that 88% of the plans believed that “rising medical malpractice premiums pose a problem for their communities. They believe the problem: increases costs through the practice so-called ‘defensive medicine’; and decreases patients’ ability to access care from physicians in legally high-risk specialties, such as obstetricians/gynecologists.” The non-partisan Congressional Budget Office concluded after studying various tort reforms that enacting H.R. 5 would reduce medical liability premiums by 25% to 30%. They also concluded that passage of H.R. 5 would decrease federal health care spending by “$14.9 billion over the 2004-2013 period.” The trial lawyers counter these claims with studies of their own. A study released by the Connecticut Patients' Rights Group said that caps on non-economic damages in medical liability lawsuits "unfairly hurt" women and elderly patients. The study claimed that the elderly were hurt because they no longer worked and could not claim economic damages, and that many injuries to women relate to sexual or reproductive functions and were not highly compensated. A Clemson University study concluded that caps on awards wouldn’t reduce liability insurance premiums in South Carolina. The study found that the number of awards doubled and the amounts paid increased from $7.8 million to $49 million between 1991 and 2001, but that the median award remained nearly constant from 1995 through 2001. The study’s conclusion that the number of claims paid increased buttresses the trial lawyers’ argument that the problem is increased physician negligence. Note, though, that the study uses “median” award not “mean” award. The trial lawyers are claiming that it was not MICRA that controlled premiums in California, but Proposition 103. Proposition 103 requires rate approvals by the California Department of Insurance. A study by the Foundation for Taxpayer and Consumer Rights claims that Proposition 103 lowered medical liability rates by 20%, not MICRA. The Pew Charitable Trust's Project on Medical Liability in Pennsylvania is studying the state’s insurance market. Its author notes that costs are increasing because more patients are surviving negligent acts by physicians and the increasing cost of medical care is driving up the rewards for permanently disabled patients. The author notes that liability premiums have increased by 500% in the last 30 years, but the cost of health care has increased over 1,000% in that time period. A report by Americans for Insurance Reform blames the crisis on insurers. It states that claims payments have risen at the same rate as medical care over the last 18 years, but premiums have fluctuated above and below the inflation rate. A report by the Center for Justice & Democracy, Premium Deceit – the Failure of "Tort Reform" to Cut Insurance Prices, claims that states that enacted major tort reforms in the eighties did not see premium reductions afterwards. Public Citizen, a consumer lobbying organization, constantly claims that it is a small number of bad doctors that produce the majority of lawsuits and increased state discipline would solve the problem. They state that according to the National Practitioner Data Bank 5% of the doctors cause 54% of the payouts. At the same time they quote the Harvard Study that only one out of eight errors results in a claim. Both sides use statistics to push their cause. However, it is the emotional story about the negative affect of skyrocketing premiums on your patients that will move the legislature to find a cure. Fairness Signed Into Law Health Insurers to Develop Better Business Practices, Strengthen Health Care Team Legislation signed into law that will help physicians make more informed decisions about health care resources by standardizing and simplifying contracts presented to them by health plans. The Fairness in Contracting Act (H.B. 1074), which has been a priority of the Illinois State Medical Society for the past three years, will put physicians in a better position to advocate for patients. “Passage of this bill injects a needed dose of trust into the physician-insurer relationship,” said ISMS President William E. Kobler, M.D. “By requiring health plans to be upfront in providing essential information, physicians can better manage patient care.” The Fairness in Contracting Act applies to the distribution of information only, and will not alter current payment methods. It will, however, provide vital first steps in restoring sensible business practices between physicians and other health care providers, and insurers, including: § Contracting procedures - with proposed contracts, physicians and other health care providers will receive all attachments, exhibits, certain specialty-specific fee information and the network administration manual. Once this information is received, physicians will have 30 days to review the contract before signing. § Remittance advice and procedures - a remittance advice must contain detailed information including the services billed, any patient payment responsibility, the actual payment and reasons for any reductions. § Recoupments - if an insurance company must recoup payments, a detailed explanation containing the name of the patient, dates of service, service code or service description, the amount and the reason for recoupment must be included in the remittance advice. “This is an important first step in bringing more equity to the business side of medicine,” said Dr. Kobler. “Patients should be encouraged to know that their health care team is taking steps to better advocate on their behalf.” Illinois House Representatives Angelo “Skip” Saviano (R-Elmwood Park), Barbara Flynn Currie (D-Chicago), Frank J. Mautino (D-Spring Valley), Sara Feigenholtz (D-Chicago), Mary E. Flowers (D-Chicago), Rosemary Kurtz (R-Crystal Lake), Dan Brady (R-Bloomington), Robin Kelly (D-Matteson) and Deborah L. Graham (D-Chicago), and Illinois Senators Denny Jacobs (D-East Moline) and Bill Brady (R-Bloomington), sponsored H.B. 1074. However, it was the unprecedented cooperation between health care professionals and providers, insurance companies, HMOs and other interested parties that led to victory. “We would like to thank our friends in the Illinois General Assembly as well as other individuals who have supported Fairness over the last three years.” Dr. Kobler stated. “We would also like to recognize one health plan in particular, Blue Cross Blue Shield of Illinois, for breaking ranks with other Illinois health plans and negotiating in good faith with ISMS. This is truly a victory for physicians and patients.” The Fairness in Contracting Act will take effect on January 1, 2004.