Trial lawyer-surgeon targets insurers in malpractice crisis

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Trial lawyer-surgeon targets insurers in malpractice crisisAssociated Press

 

February 22 2003

 

WASHINGTON -- The young woman was obviously sick and needed help. Her symptoms,

said Dr. Harvey Wachsman, clearly signaled cancer. He decided to take her on as

a client.

 

Not, however, as her doctor.

 

As her attorney.

 

Wachsman, a licensed neurosurgeon and trial lawyer who practices in nine states,

including Connecticut and Pennsylvania, has a unique perspective of the national

medical malpractice debate now raging between doctors and attorneys. His

prescription for the health care crisis: Blame insurance companies.

 

" This gal had some bleeding, and she needed evaluation, " Wachsman said of his

client, a New Yorker on her early 20s, whom he would not name out of

confidentiality concerns. " It was obvious to me that she had colon cancer. And

her insurance plan denied care up and down the line. They were so concerned on

costs. "

 

Up to 80 percent of all malpractice lawsuits, Wachsman estimates, are cases

where patients were misdiagnosed or diagnosed too late by their HMOs to treat

illnesses. The young woman who suffered from colon cancer, for example, died

within two months after he took her on as a client, leaving a 10-month-old baby

behind. Her legal case is ongoing.

 

Few, if any, experts deny that skyrocketing malpractice insurance rates over the

last year have precipitated what the American Medical Association calls a crisis

now facing 12 states, including Pennsylvania. Those states do not limit the

dollar amount a patient can win in negligent-care lawsuits, forcing doctors,

some paying up to $200,000 annually in high-risk specialties like surgery or

obstetrics, to cut care and, in many cases, shut down practices.

 

But the medical and legal communities are hotly divided on what caused the spike

in malpractice insurance costs, which have more than quadrupled over the last

several years for some doctors.

 

The issue has sparked a national debate over whether to cap pain and suffering,

or " non-economic, " jury awards for victims of negligent medical care at $250,000

- a plan authored by Rep. Jim Greenwood, R-Pa., and endorsed by President Bush.

 

Attorneys, including Wachsman, accuse insurance companies of price-gouging

premiums to make up for stock market losses in the sluggish economy. Backed by

consumer-watchdog studies, the Association of Trial Lawyers of America charges

that insurance rate rollbacks - not caps - actually drove down premium costs for

doctors in California, which is widely considered the national model for

malpractice reforms. ATLA estimates the median jury payout in 2001, the latest

data available, at $135,000 - the cost of half of one penny in every health care

dollar, according to Wachsman.

 

But most doctors side with their insurers on the malpractice issue.

 

They accuse the court system of creating a " legal lottery " for patients to win

multimillion-dollar verdicts among the 10,000 lawsuits filed each year,

according to the American Association of Health Plans. The AMA estimates the

median jury award at $1 million - a 43 percent increase between 1999 and 2000.

Only 33 percent of malpractice claims in 2001 were found to be valid, according

to the Physicians Insurers Association of America.

 

Dr. Edward Dench, a State College, Pa., anesthesiologist, concedes that doctors'

hands are tied, to at least some extent, by HMOs hesitant to pay for pricey

tests to diagnose illnesses. But that's a problem that has dropped off over the

years, he said, as Congress considers legislation making it easier for HMOs to

be sued.

 

A federal appeals court in New York last week ruled that HMOs can be sued for

malpractice on the grounds of denied treatment - a case that is expected to have

a nationwide impact on judges considering similar lawsuits.

 

But a 2001 study in the New England Journal of Medicine indicated that doctors

spent more time with patients between the years 1989 and 1998 - even as their

clientele increased. Moreover, a report released last week by the Rand Corp., a

California-based think-tank, showed that most disputes between HMOs and patients

do not involve procedures requiring medical urgency. Of those that did, 40

percent of denial appeals were for breast alterations, varicose-vein removal,

sleep studies and other non-emergency treatments.

 

" If you delay some tests, it increases the probability that you will die.

Without a doubt, " Dench said. " But I don't think that is a significant

contribution to the runaway (malpractice) payouts. The overwhelming majority of

these payouts are not related to something that simple - that they weren't able

to do a test, and therefore there's this result. It isn't that easy of an

answer. "

 

Insurers are now looking at alternate ways to curb high payouts, even if

Congress approves the proposed federal cap. American Association of Health Plans

President Karen Ignagni, squarely laying the blame for high malpractice premiums

on trial lawyers' shoulders, said HMOs are pushing for legal mediation and

external review panels to avoid jury trials that can string out for years.

 

" There is beginning to be a whole rethinking of this concept of litigation, and

it's never been this kind of broad national discussion, " Ignagni said. " We can,

in fact, compensate and make individuals whole through a different process

(while) also beginning to take steps toward a better health care system. But

right now, this malpractice system is such an overhang, that it's very, very

difficult to move toward that agenda. "

 

Even Wachsman agrees there is no single, surefire solution to the medical

quandary of providing reliable but affordable health care to patients. He

concedes that eliminating HMOs, as he would do, could prompt skyrocketing

medical costs for consumers.

 

And after 10 years as a full-time neurosurgeon, ongoing teaching stints at two

medical schools and a son who is also a doctor, Wachsman is sympathetic to

physicians whom he believes have their hands tied.

 

But it all goes back to Wachsman's now-deceased client in New York - or the

hundreds of other patients he's represented over two decades - whose lives were

irrevocably hurt by what he described as a negligent health system.

 

" We have malpractice in this country, and I believe the public has a right to be

protected and not to be thrown to the wolves (where) nobody's responsible for

them, " he said. " And the way you're made responsible in this county is we have

to pay money damages. "

 

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