By GARY ADKINS: A graduate of the Public Affairs Reporting Program at Sangamon State University, where he interned for six months with Illinois Issues and the Alton Telegraph, he is presently a free-lance writer.

Doctors, lawyers, patients, state: Conflicting views of the malpractice problem

The growth in medical malpractice suits in recent years is linked to erosion of doctor-patient relationship, great expectations on the part of patients, opening up the judicial process to increased use of expert witnesses and publicity generated by spectacular jury awards in a few cases THE SKYROCKETING cost and diminishing availability of medical malpractice insurance has emerged as the major health care problem facing the United States in the 1970's. It has spread over the nation like a plague, bringing doctors' strikes in California, threatening health care availability in several other states, and raising patient costs everywhere. Although Illinois has not been immune to the epidemic of court suits and the consequent spiralling of malpractice insurance rates, the state has fared better than most large states. Illinois physicians may still purchase malpractice insurance without difficulty and at premiums well below those of many other states. Nevertheless, experts in the medical and insurance fields here have long warned of an approaching crisis unless strong measures were taken to avoid it. As a result of urgings by the Illinois State Medical Society and the Illinois Hospital Association, the General Assembly took a bold first step toward averting such a crisis by adopting two new medical malpractice laws last June. Whether those laws take the correct approach, a re constitutional, or will even work is yet to be determined. Controversy swirls around these points like a fire storm.

The problem
Often obscured by the bickering and blame-fixing are the basic reasons for the problem. Those reasons are as varied and fundamental as the human frailties from which they spring, namely, selfishness, carelessness, and incompetency. Specifically, the problem stems from larger and more frequent court awards in patient legal suits against doctors and hospitals. The costs of these expensive court settlements have been borne mainly by health care consumers.

Of course the medical insurers are given the original bill. They pass most of it on to doctors and hospitals in the form of higher insurance premiums. To pay these premiums, health care providers pass the costs on to their patients.

Any frank and genuine consideration of this problem will show that no one party is totally at fault, nor is any one party completely blameless. Lawyers, doctors, insurers, and the general public are trapped in an ever increasing cycle of anger, frustration, and even outrage.

Cancerous factors
The growth in the number of suits brought against physicians in recent years (up 57 per cent in Illinois in 1974) is caused by several factors. One is the erosion of the doctor-patient relationship coupled with a patient's growing expectation of "good results." Another is the opening up of the judicial processes to allow for increased availability of expert medical witnesses. A third factor is the publicity generated by the spectacular jury awards which have become more common in recent years, publicity that attracts more complaining patients and highly skilled lawyers to litigation. What do these factors mean?

The undermining of the doctor-patient relationship is seen by some doctors to be a major cause of the trouble. In addition, there has been an increase in medical specialization brought on by burgeoning technology. In conjunction with this, new drugs and new diagnostic and therapeutic methods in combination with increasingly depersonalized institutions have alienated more and more patients. Many physicians and hospitals have become arrogant and dehumanized. Patients must sometimes wait hours for treatment. Others may be separated from friends or relatives unreasonably or even be operated on by "ghost surgeons" whom

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'The rapid growth in medical science has unfortunately brought about an attendant risk and uncertainty for doctors using new techniques'

they do not know, instead of a promised surgeon that they do know Such treatment is often enough to transform slight dissatisfaction into a major malpractice suit.

It is significant to note that patients seldom bring malpractice suits against family physicians or against doctors they have long known Where a patient is convinced of his physician's genuine concern and sympathy, mistakes are more likely to be forgiven.

Great expectations
In addition to abrasive doctor-patient relations, there is the added problem of great expectations on the part of patients. They not only wish the kind of care they see on Marcus Welby, M D but the kind of miracle treatment they read about in Reader's Digest The rapid growth in medical science has unfortunately brought about an attendant risk and uncertainty for doctors using new techniques Along with the ever more complicated medical procedures, there has been an increase in mistakes and misapplications of procedures, and an increase in maladies caused by treatment Uncertainty also arises because what is routine at one hospital may seem like a Star Trek treatment at another Only very gradually does a new type of therapy become "standard medical practice "

This leads to another reason for the growth in malpractice litigation the change in courtroom procedures to allow expert witnesses to testify about "standard medical practice " Until about five years ago the unwillingness of physicians to testify against other doctors kept down the number of malpractice suits Also, the judicial "locality rule" � requiring that doctors be judged by local community medical standards � helped to maintain a status quo by outlawing testimony from outside physicians As might be expected local doctors often avoided testifying because of professional retaliation and ostracism Recently however this rule has been over turned to allow the testimony of outside experts familiar with medicine as it is practiced in the defendant's community Many courts have gone so far as to allow the introduction of pages from medical textbooks as evidence against a physician Some may even require the defendant himself to testify as a witness for the plaintiff.

A development of equal significance has been the abandonment by some courts of the rule that negligence be proven when an injury clearly resulted from a medical error This change has allowed plaintiffs to win cases without producing witnesses Some claim it actually shifts the burden of proof to the defendant who, accordingly, must prove himself blameless.

Known as res ipsa loquitur, or "the thing speaks for itself," the legal principle involved is actually a restatement of the ancient rule of circumstantial evidence It allows patients to display evidence of some medically induced malady to the court as proof of a doctor's failure to observe due care.

A third factor in the rise of the malpractice issue is the publicity given spectacular awards Before August 1974 there had never been a cash award against an Illinois doctor greater than $250,000, since then there have been two $1 million awards and one $2 5 million award Juries now seem more willing to give high awards to injured parties who can generate sympathy Many observers feel that such sympathy is colored by a general resentment against doctors' high incomes and status Doctors themselves get little jury sympathy since it is assumed that damages will be paid from the supposedly vast reserves of an impersonal insurance firm.

Contingency fees
Big settlements cause part of the problem One study shows that while only three per cent of all settlements are in excess of $100,000, this three percent accounts for over 54 percent of the total premiums paid out Large awards encourage suits from both the genuinely injured and the fraudulently inspired Moreover, lawyers have a solid stake in nearly all malpractice cases since plaintiffs usually pay their attorneys on a contingency basis Under a contingency fee arrangement a plaintiffs attorney is paid a percentage of the court award if successful and nothing for failure. The most common fee is 33 1/3 per cent, but it sometimes goes as high as 40 percent

According to a 1973 U S Department of Health, Education and Welfare commission report, "no subject in the entire field of medical malpractice has evoked more bitter feelings between physicians and lawyers than the contingent legal fee system under which most malpractice suits are pursued " Lawyers defend the system on the grounds that allows even the poorest person a chance to have the best legal aid possible recovering damages caused by physicians Doctors and insurance official denounce it They say it encourages greedy or unprincipled attorneys to see large awards in nearly all cases whether the facts merit such amounts or not They add that when the patient actually entitled to some award the attorney gets a large chunk of it Finally, insurance officials and doctors contend the system discourages attorneys from accepting cases which would recover relatively small awards since a lawyer's share of the award wouldn't financially justify spending the time and effort bring suit.

The breakdown
Patients who sue aren't well served the present system They do have a chance to get a great amount of money � $4 million was the highest malpractice award ever granted by a Jury. However, only 19 per cent of all claims ever reach a trial settlement, and of that number approximately 82 per cent are decided in favor of the defendant. A larger number of all cases are settled out of court Still, only about 16 cents of every dollar spent for insurance premiums actually reaches the injured plaintiffs who win settlements The rest of the insurance dollar goes to insurance companies, courts and attorneys.

Insurance companies are sometimes blamed for playing the villain's role in the malpractice chaos Some doctors claim that insurance firms are raking in excessive profits or misjudging their needed surplus (A surplus is the estimated amount of premium reserve that will probably be left after all losses and costs have been paid.) The growing number of malpractice suits has made it more difficult for companies to estimate

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their needed surplus. About half of all suits filed result in some award for patients, thereby raising insurance rates and the amount necessary to protect companies from insolvency that could result from larger future losses.

The insurance company
Unexpected underwriting losses may not be the only threat to the surpluses. According to industry critics many insurance companies over invested in common stocks during the past two years when the market dipped. A few companies were said to have suffered surplus reductions of over 50 per cent. Such reductions could explain why so many firms have pulled out of the malpractice field in recent years and why those that have remained have not expanded. There were over 20 companies selling medical malpractice insurance in the United States two years ago; there are only about 10 today. Of these only six operate on a national scale. Most insurance firms claim that stock market losses have not been a major factor in increasing rates. Although malpractice premiums are 10 times what they were a decade ago, the companies say they are losing money.

Industry officials insist that it has become almost impossible to accurately price the malpractice market. "The risk is not insurable as the situation exists today," one said. "No company has the vaguest perception of pricing when there is a 20 to 22 per cent annualized inflation in the medical malpractice market. Most of us would like to get out."

Insurers have been suspect, however, since they have been reluctant to come forward with full statistical information to aid in outlining the problem. "The information available with respect to malpractice and related types of insurance is surprisingly incomplete," states the director of the Illinois Department of Insurance, Robert B. Wilcox. Members of the Illinois House Judiciary I Committee apparently agreed with Wilcox when they subpoenaed insurance company records and officials last June while considering malpractice legislation.

The committee then heard the testimony of officials from all the medical insurers in the state, including the largest two, the Hartford and Medical Protective companies. Hartford is in charge of the Illinois State Medical Society's (ISMS) group program covering about 5,500 Illinois physicians. Medical Protective has about 6,000 clients in the state. Together they account for over 90 per cent of the liability insurance coverage of Illinois doctors. The representatives of the firms said they were unable to give the committee full premium and claim information without additional time-time the committee didn't have.

However, in response to direct committee questioning as to whether a contemplated legal ceiling of $500,000 on court awards would help lower insurance rates, no executives answered in the affirmative. William J. Davie, president of the Medical Protective Company, said he would support such a move as "a step in the right direction." Steven Quinlan of the Hartford said he thought such a bill would have "no immediate effect but might help in the future." The committee also heard testimony stating that only four malpractice cases in the history of Illinois jurisprudence have resulted in awards of $500,000 or more. Nevertheless, the legislature decided to adopt a bill (S.B. 1024, now P.A. 79- 960) containing the $500,000 maximum settlement provision. Since then the Medical Protective Company has criticized the limit. Robert J. Miller, the company's vice president, said the limit may be too high to accomplish its goal and might actually encourage larger suits and verdicts for plaintiffs who consider the upper limit "a magnet."

Another criticism has been leveled by John D. Hayes, a former president of the Illinois Trial Lawyers Association and the attorney for the plaintiff in the largest malpractice settlement in Illinois' history (the $2.5 million award mentioned earlier). Hayes contends that the $500,000 ceiling violates the Illinois Constitution's Bill of Rights. He points out that Article I, section 12 says: "Every person shall find a remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly." Hayes says a $500,000 award might not satisfy this constitutional requirement in some circumstances. He seems to be correct in this, for in an initial test of the new law, a Cook County circuit court judge held it unconstitutional in late November.

At the June 19 meeting of the House Judiciary I Committee, Hayes read a statement from the Illinois Trial Lawyers Association opposing legislation putting a ceiling on recovery. "One thing not alluded to by the insurance companies is that the major cause of medical malpractice suits is medical malpractice," he said.

Although most doctors would call Hayes' statement much too strong, many would agree that it touches on part of the problem. Dr. Laurens P. White wrote in the American Medical News (March 1975), "We [physicians] have, from sloth and loyalty taken only token action against those physicians who practice negligent medicine, and none against those who accumulate the majority of malpractice suits . . . ."

It is estimated that over 95 per cent of all physicians have never been sued. Yet those in high risk categories, such as plastic surgeons and bone surgeons, are said to face the near certainty of eventual litigation. Excluding these, there still remains, apparently, a tiny minority of doctors who practice incompetently or who act irresponsibly and are never disciplined.

Illinois doctors are licensed by the Department of Registration and Education. This department has done little in the past to police Illinois doctors, even in cases of repeated convictions for gross malpractice, despite the fact the the department is empowered to revoke doctors' licenses. The department is understaffed and overworked (employing about 80 full time investigators), and this has resulted in Illinois ranking last among populous states in disciplining

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In addition to $500, 000 ceiling on awards (which may not be constitutional), new law sets a five-year limit on filing claims. It also provides for medical review panels to screen malpractice claims. Insurance companies need approval to raise rates

wayward doctors, according to the Medical World News. Illinois disciplined only four physicians from 1969 through 1973. In comparison, California, with over twice as many doctors, disciplined 378.

Since Ronald E. Stackler took over as head of the department, it has moved against more doctors. Six doctors were removed from practice in Stackler's first eight months. "The present system, I think, is a bad one," Stackler says. "The fact that someone has a license should no longer be interpreted as a God-given birthright."

While closer attention to licensing might help relieve the malpractice situation by removing incompetent physicians, it won't do away with it. The fact is that many malpractice claims are filed against highly competent physicians. Among those sued in Cook County last year were the deans of two medical schools, the foremost heart transplant surgeon in the Midwest and the heads of over 20 medical departments in teaching hospitals.

The 'long tail' syndrome
Some Illinois doctors are now paying more than $30, 000 a year for malpractice insurance, but the average is about $7, 116 for a high risk specialist. Four years ago it was $1, 388. And while Illinois doctors are not on the brink of losing insurance coverage, some officials say it could happen. State Insurance Director Wilcox says that the market for such insurance is "much less competitive than it was two years ago" but adds that "the odds are against a serious availability problem."

What has Illinois done? Besides the $500, 000 ceiling already discussed, S.B. 1024 also attempts to give insurance firms a better opportunity to correctly judge their surpluses. It does so by setting a five-year limitation for filing claims after an injury occurs, or two years after the discovery of such an injury. This is meant to control the "long tail syndrome" which in the past has made Illinois insurance companies responsible for court action brought up to 10 years after an injury, thereby causing immense uncertainty in the estimation of needed surpluses.

Medical review panels
Another thing S.B. 1024 does is to provide for medical review panels to screen malpractice claims. Each panel is to be composed of a judge, a doctor and a lawyer chosen by the plaintiff and the defendant from a standing list of five circuit judges, 20 practicing lawyers and 20 practicing physicians. The panel will hear evidence submitted by both parties under the rules of civil law and will then issue a written opinion as to liability "and, if liability is found, on the issues of fair and just compensation for damages." A patient who is dissatisfied with the panel's ruling could still contest it in court. If both parties accept the ruling, the court may enter a judgment based upon it. It is hoped that the review panel system will reduce the amount of insurance money going for legal fees and court costs (presently, it takes an average of seven years to settle a suit).

A fourth provision of the new law requires that all companies writing malpractice insurance get prior permission before changing rates. This provision is opposed by insurance companies who call it an unreasonable limitation of free enterprise. S.B. 1024 was sponsored by Sen. Bradley M. Glass (R.., Northbrook) and handled in the House by Rep. Robert F. McPartlin (D., Chicago).

Another new malpractice law (H.B. 1968, P A. 79-962) is designed to guarantee availability of malpractice coverage in the future and to prevent the kind of crisis already experienced in New York and California. It establishes a study commission to investigate the availability of insurance and to "recommend to the General Assembly changes to the present medical injury reparations system

Perhaps more importantly, this law allows for future organization of a temporary joint underwriting association composed of firms licensed to'' write liability insurance in Illinois if the state director of insurance determines that the voluntary market cannot provide malpractice insurance for all doctors in the state. This is seen as a stopgap measure against disaster. H.B, 1968 was sponsored by Rep, Arthur L Herman (D., Chicago) and handled in the Senate by Sen. Harold Nudelman (D., Chicago).

Since all these measures contain unproven ideas in a new field of legislation, there are no assurances that they wilt work. Perhaps more fundamental solutions will be needed. Some of these now being discussed are nofault injury compensation for patients, abandonment or limitation of the contingency fee system, or the abolition of plaintiff pleas for specific amounts of damages (called addamnum) Addamnum is often blamed by doctors for increasing the size of awards by indicating to juries the severity of the injury. They say involvement in a suit with a $ 1 million addaninum sometimes labels the doctor "guilty" in the publics mind. Some doctors are requesting to be allowed to file countersuits when a plaintiffs suit fails.

'Claims-made' insurance
Another solution which does not need legislative sanction is the writing of "claims-made" insurance. One of the nation's largest insurance firms, St. Paul, now offers only claims-made policies which are good only for claims entered in the year they are written,

Like other states, Illinois is now entering a crucial period of trial and error in which some solution will be sought to the medical malpractice problem. All citizens have an interest in that solution since it is estimated that more than $1.60 of every $10 paid to physicians goes for malpractice premiums. In addition, insurance costs add $1 to $7 a day to room charges in most Illinois hospitals. And the problem is growing.�

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