By Matthew J Phillips
A recent (questionable) malpractice verdict against a well-known and highly respected local orthopedic surgeon threatens to adversely impact access to care for millions of patients in New York.
Not since the 1980s, when a work stoppage by physicians successfully garnered an additional $1 million in malpractice coverage for doctors here, has there been any meaningful movement on tort reform in this state.
Physicians in New York are limited in the amount of insurance they are allowed to purchase: $1.3 million per case and $3.9 million lifetime.
Following the crisis of the 1980s, we became eligible to receive an additional $1 million in coverage. For that we pay among the highest rates in the country and we work in one of only 15 states that have no cap on damages. We can be sued successfully and found personally liable for incredibly large amounts of money.
For years there has existed a sort of steady state of affairs. Attorneys on both sides of a malpractice case profit. Malpractice plaintiffs’ attorneys and personal injury attorneys are some of the highest earners in any field. Likewise, insurance executives who provide coverage to physicians take home millions of dollars per year.
These shrewd people realized long ago that none of this would be possible without a symbiotic relationship. Attorneys would sue for and settle for policy limits, not wanting to “kill the golden goose.” Insurance companies would oblige, as long as profits and executive salaries continued to grow.
We live in a country where a suboptimal outcome has become synonymous with malpractice. Untreatable or hard-to-treat problems that result in anything less than 100 percent perfection must mean negligence. I can assure you that my colleagues and I don’t get paid more, improve our reputations or sleep better at night when our patients aren’t doing well.
The recent case is a shot across our bow. Without getting into the specifics of the case, physicians have been sent a message: $2.3 million is no longer enough. They will seek far more than most of us will earn in a lifetime and sympathetic, misinformed juries will award it.
Momentum is building quickly in response. A work stoppage is a real possibility. A campaign to boycott certain insurers has been proposed. Someone suggested refusing to treat attorneys and their families until we get support from the legal community!
Matthew J Phillips, M.D., is assistant professor of clinical orthopedics at the University at Buffalo School of Medicine and Biomedical Sciences.