Is it time to take a position on medical liability reform? - President's Message - Editorial

AORN Journal,  Nov, 2003  by Betty J. Shultz

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First, let me say happy Perioperative Nurse Week. AORN celebrates Perioperative Nurse Week from Nov 9 to 15, 2003. This year's theme is "Perioperative Nurses: Providing Safe Patient Care ... in the OR and Beyond." Please take the time to say thank you to your peers in perioperative nursing. If someone does something special for you, do something special for someone else--and not for just this week. Pass the good will on, and you will be surprised at how it grows.

Secondly, I want to wish everyone a happy Thanksgiving. We all have much to be thankful for, not only in our practice, but in our personal lives as well. I often think about how others affect both my professional and personal life. What I want to talk with you about this month, however, is how others in the surgical arena, and their practice, affect us as perioperative nurses.

LIABILITY REFORM

One topic that keeps coming to mind regarding our surgeon colleagues is the escalating cost of medical practice insurance and the issue of medical liability reform. What I would like is for all of us to think about how this issue affects nursing, as well as the people to whom we provide care.

In a statement to the US House of Representatives on the oversight hearing on health care litigation reform, the American College of Surgeons (ASC) wrote,

   The large premium increases and
   declining number of liability insurance
   carriers are forcing many surgeons
   to make difficult decisions
   about limiting the scope of their
   practice, moving to other states, or
   retiring early. (1)

There are particularly difficult situations in West Virginia, Pennsylvania, New Jersey, Mississippi, Nevada, and Florida. It is anticipated that other states without reforms are headed toward a similar crisis. Currently, 24 states have some type of medical liability reform.

According to an article in the Las Vegas Review Journal highlighting the impact of rising medical liability insurance rates in Nevada,

   Five trauma surgeons
   and 26 specialty surgeons
   have resigned or
   requested leave from the
   University Medical
   Center's trauma center,
   citing the risk of doing
   business when rates of
   medical malpractice
   insurance are soaring. (2)

For example, the insurance premium for a colon and rectal surgeon in Nevada in the year 2001 was $35,000. At the end of 2001, it increased to $100,000.

Another example is cited in the Cleveland Plain Dealer.

   A Cleveland obstetrician
   buying a policy
   from Medical Assurance Co in 2002
   typically would have paid about
   $100,000, or 38% more than what
   the policy cost in 2001. This year,
   that premium is about $119,000, a
   one-year price increase of 19%. (3)

By my calculations, that is an increase of 57% in a two-year period.

The American Medical Association says the problem is so bad that

   access to health care is
   now seriously threatened
   in states such as Florida,
   Georgia, Mississippi,
   Nevada, New Jersey, New
   York, Ohio, Oregon,
   Pennsylvania, Texas,
   Washington, and West
   Virginia. And, a crisis is
   looming in more than 30
   other states. (4)

On the other hand, plaintiffs' attorneys do have a point. Patients sometimes are grievously damaged, with loss of life or limb.

An interesting study was conducted at the Albert Einstein College of Medicine, New York. Thirty-six malpractice cases involving cervical spine surgery were identified. Twenty of these cases were from California, and 16 were from New York. California has a cap of $250,000 on pain and suffering, and New York has no cap. Questions included who sued, who was sued, who won, who lost, and why.

Researchers concluded that all of the six plaintiff verdicts and four of the nine settlements appeared to be appropriate; however, researchers could determine "no fault" in five cases that the defendants had settled, and they concluded that the surgeons did not deserve to lose the suit. (5) What is even more interesting is that the author of the study found fault in five defense verdicts. These patients were newly quadriplegic patients and had sustained new postoperative root injuries. These patients deserved monetary awards but received no compensation whatsoever.

THE EFFECT ON PERIOPERATIVE NURSING

My question to all of you is how does this affect your perioperative nursing practice? Are facilities closing down part of their surgical suites because there are not enough procedures? Are nurses losing their positions because of low caseloads? Do patients have to go to different areas to receive the care that is needed? Are patients receiving safe, quality care from all of their providers?

I just learned of two very capable and highly regarded urologists who are leaving my community because of the high premium increases in their malpractice insurance. As of now, the facility has not been able to replace them; thus, the caseload volume has dropped at the surgery center, and staff members' hours sometimes are reduced. I believe that many of you have similar stories.