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Medical Emergency

Tort Reformers Gear Up To Bring Medical Malpractice Legislation To The Forefront Of The General Assembly’s Next Session

By Edward Ericson Jr. | Posted 12/15/2004

Dr. Edwin Chen says he is a victim. Already paying $63,000 a year in malpractice premiums, the Frederick OB-GYN is today facing an annual rate increase of tens of thousands more dollars—an increase Chen says has him contemplating early retirement.

Chen told his story in the Montgomery County Delegation room of the Lowe House office building in Annapolis on Dec. 1. One of eight doctors sitting around tables arrayed at the front, Chen spoke solemnly as six television cameras and at least as many still cameras clicked and whirred. Chen’s testimonial came as part of a press conference called by Save Our Doctors-Protect Our Patients, which bills itself as a coalition of physicians, hospital administrators, medical professionals, and concerned citizens struggling to curb high malpractice insurance rates in Maryland. The group’s symbol is a white-and-red life preserver, plastic facsimiles of which were hung on the wall behind the doctors and stacked on a table in the back of the room.

Chen’s voice rose in anger as he told the cameras and the newspaper reporters behind them, “Trial lawyers get too much money, so they get greedy,” and that lawyers “should be punished for frivolous suits.”

Save Our Doctors is just one of several organizations pushing tort reform in Annapolis this year, where “greedy lawyers” and “frivolous suits” are the flavor of the season. The Maryland Hospital Association, the state’s insurance lobby, and many doctors complain about what they call an “out of control” legal system. Echoing the statements of President George W. Bush, Gov. Robert Ehrlich has put tort reform at the top of his agenda this year.

“The soaring cost of malpractice insurance has reached a crisis point,” Ehrlich said in his announcement that he was empanelling a task force—composed mostly of insurance-industry advocates, hospital administrators and doctors—to study the issue. Med Chi, the state’s medical society, has decried proposed malpractice premium increases of 33 percent and has, with Medical Mutual, the state-created, for-profit insurance company which handles more than 75 percent of the malpractice business in Maryland, presented evidence that huge jury awards are driving the increase.

Launched in September, Save Our Doctors quickly became a spearhead for the tort-reform movement, according to founder Dr. Karl Riggle, who is chief of surgery at Washington County Hospital in Hagerstown.

“We have basically gotten Med Chi more active,” Riggle says in a Dec. 9 interview. “They’re a big organization. They have been doing some of the stuff they can do—but we probably got as many people ourselves [to testify in Annapolis] as they did.”

Riggle says he doesn’t want to sound critical of Med Chi, which employs five lobbyists at the state capital to advocate on behalf of its 6,500 doctor members. But tiny Save Our Doctors (which doesn’t have a membership roster, according to Riggle) has gotten much of the press attention over the past two months, as lawmakers wrestle with the malpractice crisis. It has done this through a combination of factors, including cultivation of ties to the governor, good, old-fashioned solidarity, and the hiring of a savvy political marketing firm.

Save Our Doctors garnered its attention not only with its dramatic press conferences and web site, but with a November job action in which 50 doctors associated with the group postponed elective surgeries in order to lobby and demonstrate at the legislature. The group’s legislative wish list closely matches that of Med Chi and Ehrlich—a lower cap on “pain and suffering” awards and new rules to curb what the group regards as “economic damages.” But it goes further, asking for a special court to hear only malpractice cases, for example, and a requirement that doctors who testify for injured patients in lawsuits be Maryland doctors certified in the same specialty as the doctor who allegedly erred.

Riggle says Gov. Ehrlich met with the staff at Washington County Hospital in late August and, in effect, vetted their wish list: “We presented our ideas to him at the meeting. He said, ‘That’ll work. That’ll never happen. That either.’ Then we came up with the initial four-point platform based on what we heard were reasonable and doable.”

The governor added Riggle to his tort task force in October, and the Washington County Hospital staff of 300 raised $100,000 to launch Save Our Doctors, Riggle says. The core of the group remains Washington County Hospital staff and associates, although Save Our Doctors is trying to expand. “Realistically, doctors aren’t very good at organizing,” Riggle says. “If we’d organize and be more vocal, we’d have more control over our lives.”

Riggle knows this from experience. In July 2002, Washington County Hospital closed its trauma center after two out of the five key doctors retired, leaving only three doctors to cover nights “on call.”

“We were taking—asked to take—calls every other night,” Riggle says. “So the hospital closed the trauma program. Over the next three months there was a furor in the area. We overwhelmed the helicopters,” which in most cases had to transport critically injured patients to Baltimore.

The 2002 crisis was about money as much as care. The hospital was not paying its doctors to be on call, yet those doctors could not do other things while on call. Riggle and the other surgeons called Nicholas Giampetro, a Baltimore lawyer specializing in physicians’ business issues. “We hired him, organized, and got the hospital to see things in a reasonable way,” Riggle says.

By the fall, the hospital reopened its trauma center, and the state legislature soon passed a new tax on automobile registrations to pay the doctors. “I guess that was empowerment, because we found you really can work together and make a difference,” Riggle says.

Staff at the hospital has hung together and made common cause with the hospital since then, Riggle says, tackling the malpractice crisis this year. Riggle says the group sought professional help early, hiring a lobbyist and a polling and public relations firm to organize rallies—and make sure the press notices them.

As the Dec. 1 press conference broke up, a pair of men slouched in chairs near the back of the room, one of them manipulating images on a laptop computer. He told Radiologist Steven L. Diehl, a Save Our Doctors steering committee member, that he is editing some pictures “to put in the newspaper”—but he was not a reporter or an editor.

Asked who he was and what he was doing, the man hesitated before offering his hand. “We’re sort of working with Save our Doctors, helping to build the coalition . . . on the communications side,” he said. The man was Keith Haller, CEO of Potomac, Inc., a Bethesda-based polling, political-consulting, and marketing-research firm. According to Potomac’s web site, in past years his company has worked for Comcast Cable and the Ogden Martin trash-to-energy project, conducting opinion polls, arranging meetings with government regulators, and even organizing public festivals to burnish its clients’ image. In both cases his corporate clients got what they wanted, despite opposition from citizens’ groups.

Opposition to tort reform is centered at the trial bar. The lawyers who make money suing doctors have their own corps of lobbyists at the capitol. Both sides—lawyers and doctors—claim to have the patients’ best interests at heart. Yet few if any of the things Save Our Doctors has asked for would help injured patients trying to get compensation, even though both sides of the debate agree that 90 percent of those injured by negligent doctors never file suit—and only a tiny fraction of those suits filed get payoffs for plaintiffs. Consumer advocates say some of the problem rests with the medical society’s tendency to cover for its own.

“Most doctors are good people trying to heal the sick,” says Sean Dobson, deputy director of Progressive Maryland, a consumer group. “Doctors have a lot of authority over people. They have the white coat. Politically, that’s what makes them potentially very powerful in the state. But in Maryland they do a very poor job of disciplining and decertifying their incompetent colleagues who hurt patients.”

Public Citizen, the consumer group founded by Ralph Nader, annually ranks state medical boards’ discipline rates. In recent years Maryland’s has ranked very low, placing 47th out of 51 over the years 2000 to 2003, according to the group’s research (“Doctors Behaving Badly,” Mobtown Beat, May 5). Although Med Chi’s executive director (and Medical Mutual Board Member) Michael Preston says Public Citizen’s methodology is flawed, the state has begun to reform the system which disciplines just two out of every 1,000 Maryland physicians annually—and often only after their conviction on felony charges.

Citizens’ groups say just three percent of doctors account for more than 50 percent of the malpractice awards, but doctors insist that the number of lawsuits against a doctor is no measure of his competence. Riggle takes on hard cases and does emergency surgery in two states, he says—sometimes on people other doctors have refused to work on because of the risk. “I do 600 plus surgeries a year,” says Riggle. “I clearly have a lot of respect in my community [because] I provide good care. Care at times has adverse outcomes. We need to be judged on the kind of care we provide.”

Riggle has faced at least six lawsuits since 1992, including three filed in 2003, according to records kept by Maryland’s Health Claims Arbitration Office.

In one of those 2003 suits, Riggle went to a jury and won. The other two—one in which a woman died because of an infection the doctors weren’t informed of; the other in which a woman is suing because, according to the complaint, Riggle removed her lymph nodes instead of merely doing a planned biopsy—are still pending.

“It’s a system error,” Riggle says of the death case. “We ought to learn from that, and figure out ways to make that not happen. I feel bad. I felt bad then. I spoke to families. We spoke multiple times. Even years after.”

Riggle and others on the tort-reform front lines say they want what’s best for patients—including rules that will allow medical professionals to better address the systemic errors that sometimes hurt patients. But no proposals before the legislature and governor deal with that complex reform agenda in a detailed way. At press time, the state legislature still had not called a special session, but negotiations between legislative leaders and the governor continued. Their disagreement reportedly centers on how to make Maryland taxpayers foot part of this year’s malpractice insurance bill in the most invisible way.

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