April 2003 Bulletin

AAOS launches major professional liability initiative

Orthopaedics now has a window of opportunity in which to act

Orthopaedic surgery is in the midst of a professional liability insurance crisis like none seen before. Over the past few years, professional liability insurance rates for physicians, especially those in high-risk specialties such as obstetrics and gynecology, neurosurgery, emergency medicine, thoracic surgery and orthopaedic surgery, have increased to unaffordable levels. In addition to the cost, many physicians are having difficulty obtaining insurance as companies across the nation have dropped their professional liability business.

For these reasons, the Board of Directors (BOD) of the American Association of Orthopaedic Surgeons (AAOS) has agreed the organization needs to act now. "The time is right for the entire medical profession, particularly our specialty and our colleagues in other high-risk specialties, to take action," says AAOS President James H. Herndon, MD. "It is increasingly clear that we need the kind of action to counter the ongoing very active lobbying efforts in Washington that oppose reform."

Toward this end, the BOD has approved the establishment of a restricted fund of $1 million from the AAOS endowment portfolio to be used in support of professional liability reform legislation. Simultaneously, the Association is asking each member to make a contribution of $1,000 for the purpose of professional liability reform.

"We hope to build a war chest in the area of $16 to $17 million that will sustain this very crucial effort," says William W. Tipton, Jr., MD, AAOS director of medical affairs.

"Professional liability is an issue that in the past year has revealed for the first time members having to modify their practices to avoid high risk procedures or to close a practice in one state and relocate to another or retire."

Strategies to be developed will include:

It will also include working with other medical organizations such as the American Medical Association, American College of Surgeons and the major surgical specialty societies with whom the AAOS works on a regular basis. There will be more details about this effort as the coalition program develops.

Scope of the problem

A random survey of 345 orthopaedic surgeons from Nevada, Pennsylvania, Mississippi and Florida found doctors were restricting their practices in a variety of ways. Over 300 of these orthopaedic surgeons said they limited their emergency room coverage, 113 are no longer doing spine surgery and 115 have eliminated other high-risk or complicated trauma services with uncertain outcomes. They report referring the majority of their patients to academic health centers, placing greater pressures on these facilities. Several other surgeons report they are responding to the liability crisis by relocating or closing their practices, limiting their practices to office-based care, purchasing less liability coverage or going bare altogether (a practice permitted in certain states).

It is a problem that affects not only physicians but also, more importantly, impacts patients. "This situation is putting patients at risk in communities where access to care is already limited or non-existent," says Dr. Herndon. "Patients with certain high-risk problems are having difficulty finding physicians to care for them. In fact, at least 18 states are in severe crisis, with emergency departments closing their doors and specialists moving their practices to more favorable states."

Of immediate concern is the fact that the lobbying efforts of tort reform opponents include testimonials from patients who have been successful in their suits against physicians. These patients, organized by lobbyists, have already testified this year before several Senate and House committees and are speaking to members of Congress in an effort to block any further legislative action. "We need to counter these efforts with the facts about the liability crisis and how it is forcing physicians to leave or retire from practice and even participate in work stoppage actions to demonstrate their desperate situations," says Dr. Herndon. "The negative effect of this on patient access to care cannot be overemphasized.

"Unfortunately, we have seen little support for our outrage over these problems in the public arena. We need to do a better job educating the public about why these problems are occurring in their communities and that failure to get their support in this effort will endanger their access to health care. Likewise, we need to be more actively engaged in the political process that is currently on center stage in Washington."

Focus on federal tort reform

A major part of this effort is the shift in focus on need for tort reform at the federal level. In the past many have argued that tort reform is not a federal issue, but instead must be addressed state-by-state. Yet, without meaningful federal tort reform, the current situation will likely continue to expand resulting in considerable variability among the states on the availability of health care.

In its "Position Statement on Professional Liability: Tort Reform," the AAOS calls for the consideration and adoption, at the federal level, of several tort reform measures to address the serious failures of the court-based tort system, permitting orthopaedic surgeons to better provide high quality services at reasonable costs to their patients. The measures include:

"We need to have our Fellows and their patients, as well as professional lobbyists, working full-time for legislative reform," asserts Dr. Tipton. "This combination of effort is essential if we are to convince senators of the importance of reform for all patients. We need to join this debate at the national level and fight vigorously for national reform for professional liability."

Orthopaedics now has a window of opportunity in which to act, Dr. Tipton adds. "We have a president who supports liability reform. President Bush has stated publicly that professional liability reform is a national problem needing national reform legislation. And, a cardio-thoracic surgeon, Bill Frist, MD (R-Tenn.), is now majority leader in the Senate," he explained. "It is apparent the window has opened itself to the possibility of achieving liability reform in the senate. This won’t be easy as the obstacle, in my opinion, has been the Senate Judiciary Committee. This is why the Association has taken the unprecedented step of pulling funds out of reserves specifically to help fund our efforts."

In mid-March the House of Representatives passed H.R.5, the HEALTH Act (Health Efficient, Accessible, Low Cost, Timely Healthcare Act, which includes a cap on non-economic damages of $250,000, limitation of contingency fees and other reform measures. If reform efforts are to be successful, the Senate must also approve a similar professional liability reform package. However, as of now, there are not enough votes in the Senate to carry such a reform package.

There are some hopeful signs, however. S.607 has been introduced in the Senate by Senators John Ensign (R-Nev.), Judd Gregg (R-N.H.) and others. Also, Senate Majority Leader Frist and Senate Majority Whip Mitch McConnell (R-Ken.) are working with Senator Dianne Feinstein (D-Calif.) in an attempt to craft a bipartisan proposal that can garner the necessary 60 votes needed in the Senate to pass legislation. Senator Feinstein is likely to support a cap of $500,000 on non-economic damages with a catastrophic exception. The senate is now targeting early May for a vote on medical liability legislation.

Member support key to success

"This is the first time in the history of the Academy/Association that such an action has been taken, namely, the Board of Directors authorizing funds from reserves, and a request for members to individually contribute," says Dr Herndon. "These contributions, which must be in the form of a personal check (not a practice or corporate check), are distinct and separate from support for the AAOS PAC. We certainly need you to contribute to both, as there are many other issues we need to address, not the least of which is Medicare Reform.

In summary, Dr. Herndon notes, "While it is critical that we move quickly to fund and organize our efforts, please be aware that this will not be a short-term fight, as it may take several years to affect change. However, if we as physicians don’t begin now to speak with a unified voice on this important issue, we can expect incremental or little change. Truthfully, this may be our last opportunity to avoid further acceleration of the medical liability crisis and to improve our ability to deliver the best care to all of our patients."

How to contribute to the Initiative

Contributions of all denominations are welcome, although $1,000 is the suggested amount. Your personal check should be written to American Association of Orthopaedic Surgeons and sent directly to:

American Association of Orthopaedic Surgeons
6300 N. River Road
Rosemont, IL 60018
Attn: Professional Liability Initiative

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