Governors' report advises states on malpractice

OB/GYN News, Feb 1, 2003 by Sally Peters

With the help of states in the midst of a malpractice crisis, the National Governors Association has developed a list of ways that states can deal with, or try to stave off, problems of their own.

The governors' advice appears in an issue brief, in which they acknowledge that the malpractice crisis is causing physicians in some states to retire, move to other states, or give up medical practice altogether.

Several factors combined to create the current crisis, according to the brief. Among them are artificially low premiums set by insurers in the 1990s to gain market share, rising jury awards, and the exit from the marketplace of major insurance carriers, notably the St. Paul Companies.

One year in the making, the issue brief gives states short-term suggestions for dealing with the problem. The suggestions come from crisis states, such as Pennsylvania, West Virginia, and Nevada, which are profiled as case studies.

Short-term solutions that have been implemented by some states include the creation of funds from which doctors may purchase malpractice insurance; the placement of caps on noneconomic damages; alternative dispute resolution to keep medical liability issues out of the courtroom; and patient safety efforts, which would stave off malpractice claims in the first place.

The paper does not include long-term solutions because no one really knows what those solutions are, Emily Cornell, a health policy analyst for the NGA and author of the brief, told this newspaper. The only long-term solution that has been proposed involves states throwing out their current legal systems and starting over. No state has tried that, she said.

"I don't think it's not possible, but it would be an enormous undertaking," Ms. Cornell said. Starting from scratch, a state would then enact a system of alternative dispute resolution, as some have suggested. Another option would be to create a model medical reporting error system, such as that employed by the Federal Aviation Administration.

Lacking long-term solutions, states have gotten creative in applying short-term fixes, Ms. Cornell said. Numerous states have moved the issue to the forefront of their legislative agendas.

Four states--Pennsylvania, West Virginia, Nevada, and Mississippi--have passed some form of malpractice reform legislation, and bills are pending in Ohio and New Jersey.

In Pennsylvania, Governor-elect Ed Rendell is establishing a task force to address malpractice issues. Even though the state has passed legislation to address the issue, "they still feel like the problem isn't resolved," Ms. Cornell said.

The issue brief is available online at www.nga.org.