A Medical Malpractice Solution for NJ - Peter Leone, Address to NJ Legislators

April 14, 2011, Whippany, NJ

Thank you, Dr. Alieta and Dr. John Eck, and thanks also to Jeff Weingarten for the opportunity to address this group.  My name is Peter Leone, and for over two decades I was the head of the Claims Department at New Jersey’s largest insurance company.

Opportunity is indeed the key word tonight.  We have an opportunity for change which hasn’t been seen in decades.  For when in our history has every aspect of state and federal spending been placed under the magnifying glass as it has in our time, right now, this very minute?

There are folks in this room – right here and now - who have the power to effectuate change but have never before now truly had the opportunity.  This is your moment in history.   This is the moment for those of you entrusted with public monies to save our state and our nation’s greatest asset: our health. Without health, we cannot function in our daily lives.  Without health, our children will suffer.  Without health, the elderly and the aging and the neglected will unfairly wither.

To those of you who want an enduring legacy for the foreseeable future, it is in full view tonight.  You can grasp it, and make it a reality, by adopting the remarkable vision of Dr. Alieta Eck and Dr. John Eck.  I urge you to do so.  Today.

I have spent 34 years overseeing some 40,000 malpractice cases. The irony was and continues to be that the vast majority of those 40,000 claims contained no malpractice.   They were simply a mal- occurrence.  In fact, as one of the research authors of the now infamous Institute of Medicine Report wrote in the New England Journal of Medicine in April 2000, “most injuries from medical care are not due to mistakes.”

However each one of those cases cost at least $20,000 or more. What an unnecessary drain on the health care delivery system! on the lives of doctors, the courts, the families involved, the hospitals! The problem goes much deeper…for when physicians treat patients they function under the looming threat of the specter of a malpractice case.

You see, the plaintiff’s bar never addresses the other side of the equation; the physician’s side is the part that affects everyone. Every time an obgyn delivers a child the threat of a malpractice case hangs over the doctor for 20 years in our fair state. Every time an ER doctor treats a patient the specter of a malpractice case lingers. You see, the jury trial system has been so bastardized by the plaintiff’s bar that invariably physicians and their insurance companies are forced to settle highly defensible claims.

When a doctor and an insurer settle defensible claims the following happens:

• they produce surcharges when none should exist
• they send the wrong signal to the plaintiff’s bar
• they lull the carrier into shirking their fiduciary responsibility
• they place an enormous financial and emotional burden on the physician
• they result in across-the-board insurance rate increases
• they cause increases in reinsurance costs
• they signal to the plaintiff’s bar to take on  only high value claims  with or without deviation from the standard of care
• they create a society of doctor-experts willing to compromise their integrity to denigrate their colleagues and our hospitals
• they drive up expenses (typical claim can cost on average $20-$40,000 to simply defend, and often far more.)

Compounding the matter is the unwillingness of the malpractice carriers to actively work toward tort reform (and they have the data to support reform! But they refuse, as it is contrary to their interests to drive down insurance rates).

Then there is the media’s failure to properly understand and investigate the consequences of the malpractice issue.  No surprise: it’s complex.

But by far – by far - the greatest failure rests with our legislators whose apathetic attitude is causing the demise of our health care delivery system.

These failures cause physicians to order, by some estimates, 100 to 200 billion dollars annually in utterly unnecessary tests.  These failures have caused us to lose 400 Ob-Gyns in New Jersey alone many of whom were in the prime of their specialty. The average age at which an obstetrician STOPS delivering babies is – are you ready? – the age of 46!  What a loss of expertise and experience and the cost of training!  And further, the personal pain on a physician cannot be calculated …a malpractice case is an extremely personal thing to a physician – yet it is something the plaintiff’s bar deals with quite cavalierly.  It destroys a doctor’s ability to practice confidently.  It makes him or her a worse doctor.

How does this tie in with treatment venters and charity care?  It’s simple. There is no greater malpractice risk than treating someone who is coming in for the first time with little or no prior treatment. Seeing a pregnant mom at 20 weeks or more with diabetes, obesity and other medical problems is a prescription for a malpractice case. Charity care patients not untypically have underlying medical issues.  Sometimes they are what we call non-compliant – although it is usually that they simply don’t understand.  There are  language barriers, there’s lack of transportation for follow-up visits …and therefore, these patients are virtually likely to have a mal occurrence.

We need to establish treatment centers where physicians see and treat these folks and should not have to worry about their malpractice coverage.

How do we address this?

• We could have state sponsored malpractice coverage such as the UMDNJ model.
• We could grant total immunity to physicians who donate a specified amount of time to charity care.
• We could instruct the med-mal carriers to provide a significant credit to physicians who provide charity care
• It is time now – today - to address the malpractice issue for all physicians and for those who do not treat charity care patients.
• The solutions I propose are not “heavy lifts” requiring in some instances adoption of new regulations within the department of insurance while in other instances we may require legislation.

Question: When we sit at a traffic light and another car plows into your car…. we don’t expect our car insurance rates to rise. Why does a doctor who commits no malpractice experience a rate increase when their carrier makes a payment for economic expediency? That increase can easily amount to a 10% to 50% of current premium and higher. And that increase can easily last as much as 5 years. In monetary terms an Ob-Gyn who is surcharged can expect minimum increase of $10,000 and higher.

We could simply cap the policy at its current level. This would allow the doctor to try his defensible case with no fear of losing a life savings.

We need to scrutinize the reserving practices of med mal carriers along with their claim settlement practices – and, most important, their rate-making decisions.

Thus, I have come to the conclusion that the plan of having the state reward physicians who provide charity care with medical malpractice coverage for their entire practice would have several benefits. The taxpayers would be relieved of this enormous burden of the Medicaid system.  The poor would have better access to care, and physicians would be able to practice in an environment in which they are not expected to order every possible test on the first encounter. 

This plan is a good one, a sensible one, a practical and financially necessary one.  It should be advanced by the New Jersey legislature.

Let me leave you with this simple thought…

Many of you may not know this - but our Governor Chris Christie was once an attorney who worked hard to defend physicians.  He needs to wear that hat again!

Comments

[Gene Rosov]

Peter Leone is one of the most astute, balanced and level-headed observers in the medical malpractice field. His words and thoughts have been fired in the furnace of 25 years' experience in malpractice. To listen carefully to him, and to effectuate his suggestions, could represent the beginning of an admirable move towards sanity in the medical malpractice area, and indeed in all of medicine, which is so profoundly affected by mandatory and useless NPBD reporting, the continuous threat of lawsuits, the bizarre re-distribution of malpractice premiums, and the inability of our tort system to assist medical practice to swiftly improve. So long as the backdrop to medical care is a population where about one-third of us are obese including one-fifth of all children; and more than half of us are overweight; where 20% of us smoke or use tobacco; where 20% of us use illegal drugs or use prescription drugs illegally; where we eat 6.5 oz. of sugar daily and watch over 5 hours of TV (including 2-year olds) there will always be disastrous outcomes, and the blame will fall on physicians - since a jury will have a tough time looking in the mirror, and will always seek to justify its own ill-health by ignoring the intrinsic ill-health health of plaintiffs - the substrate for all medical injury and poor medical outcomes.

[Spencer @ medical malpractice lawyers]

According to the Institute of Medicine’s seminal study of preventable medical errors, "an estimated 98,000 people die every year at a cost of $29 billion." I think what's important is to prevent medical errors. This will lower health care costs, protect the well-being of patients and reduce doctors’ insurance premiums. medical malpractice lawyers

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