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OB/GYN Editorial APRIL 2005
Liability Reform Should Be an Access Issue, Not a Money Issue
Thomas E. Nolan, MD, MBA
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Over the past decade, OB/GYNs specifically, and all physicians
have concerns on the environment of litigation and liability
in the medical community. I will not belabor the facts
since they are well known to our readership. Fortunately,
they are becoming better known to the constituents who
truly matter: our patients. And fortunately, they are beginning
to hear the message over the constant din created by the
plaintiffÍs bar. Regardless of your politics, the reelection
of George W. Bush has already made a difference in liability
reform. On February 18, 2005, a tort reform bill finally
made it through the House„and the infamous road-blocking
Senate—after 7 years of fighting. The peopleÍs voices must
have been heard, because many of the previously democratic
voters finally felt the pressure to vote for this bill.
This particular bill moves class action suits from the
state courts (unfortunately, many of these are in the South)
where judges are elected and must kowtow to the local plaintiff
bar. Federal court judges are vetted and must pass legislative
review, primarily on merit, rather than on campaigning
skills. This is an enormous victory for the business community
and eliminates a lot of backwoods venues where many of
the shakedowns took place in the process of certifying ña
class.î This is the first step in tort reform, which hopefully
will spill over into medical liability tort reform.
Another trend emerging in the United States and the popular press is the issue of access to care. The American public has finally linked the relationship between medical liability, the doctor, and how he or she practices (and in too many cases, if at all) with their ability to get high quality health care. In the recent election, both candidates made ñaffordabilityî a major ingredient in their platforms. Even though they attacked the issue of health care in different ways, the bottom line is that affordability and access are linked hand in hand.
Another looming crisis that is also marching across the United States is Medicaid funding. In many of the very poor states, especially in the Deep South, Medicaid funding and care for the uninsured are a major part of state budgets. Because of the downturn in economic activity and changing tax structure, many states are running out of money. As of the writing of this editorial, Mississippi Medicaid estimated that it will
go broke on February 28, 2005. The Department of Health and Human Resources in Louisiana is projecting a $4 million to $500 million shortfall, or 10% of the total budget. Health care is now approximately 30% of our state budget. Such Medicaid shortfalls are happening across much of the United States. In many academic medical centers, the number of deliveries has dropped dramatically in the last decade as Medicaid reimbursement for both hospitals and providers became more and more lucrative. A major concern in urban as well as teaching centers is the ability to handle a large load of patients if in fact access on an economic basis deprives many of Medicaid providers.
Therefore, the most important aspects in the shifting health care paradigm in the United States are (1) the access to care and the number of qualified providers; and (2) who is going to pay. The medical community has been under tremendous pressures to bring electronic medical records and other tools that have been used successfully in business to the clinical workplace. The reason the United States has remained competitive in the global economy is the efficient use of computers in everything from manufacturing to distribution to the customer. In the health care arena we have barely begun to scratch the surface, but this is not the problem of the physician; rather, it is the inadequacy of translating the patient provider interface into a usable medical record. Even though many, many attempts are being made in this area, the final link of the provider being able to enter data into the database (using voice recognition software) has not been reached. Until this allows the efficacy of the computer to be taped, we never efficiently utilize the most expensive link in this chain: the provider.
We have done a great deal in the last 3 years to bring liability reform to the forefront as the American College of Obstetricians and Gynecologists and individual practitioners have placed pressure on legislatures and state government to recognize the problem. Unfortunately, we have probably been fighting this more as a fiscal battle then as a human battle. The patient-physician interface is the one that the patient remembers and ultimately wants. When that particular physician drops obstetric care, leaves the community, or limits patient access to his or her practice, it drives the point home that the there is a link between liability, resources, and access. Anecdotally, many defense attorneys have told me they are noticing that juries are not handing out huge awards anymore, and are in fact becoming more and more empathetic to the physician and the complexness and difficulty of practicing medicine. In continuing to campaign forward, we need to assert that liability reform is an access issue, not a financial issue.
Reform is being demanded on other fronts. The pharmaceutical industry, patient safety, quality care, and all aspects of medical care are coming under much greater and tighter scrutiny by the American public. LetÍs be the leaders in making the issues germane to the practitioner and patients rather than becoming political pressure points.
Thomas E. Nolan, MD, MBA
Editor-in-Chief
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