Physician Law : Pennsylvania Health Law Lawyer & Attorney : Fox Rothschild LLP : serving Philadelphia, Pittsburgh, Allentown, Erie, Upper Darby Twp

The results of a comprehensive study published this week in the New England Journal of Medicine (NEJM) confirms that physicians’ fears of being sued for malpractice are not irrational. According to the article, “Malpractice Risk According to Physician Specialty”, most physician will be sued for malpractice at least once in their careers. Interestingly, however, only about 22% of malpractice cases annually result in a settlement or other payout.

Low-risk specialists including psychiatrists, pediatricians, family practitioners, and dermatologists have a 75% chance on average of being sued during their careers but high risk surgery specialists -- thoracic cardiovascular surgery, neurosurgery, general surgery, orthopaedic, and plastic surgery – face a 99% chance of being sued. However, the study, which also looked at the average size of payouts, suggests that the likelihood of being sued is not necessarily related to the size of payouts. For example, the average payout in pediatric cases was $520,923 but was only $344,811 in neurosurgery cases.

The threat of a malpractice lawsuit (as opposed to Medicare/payor overpayment liability which I contend is much more likely and not an insured risk!) is a perennial bogeyman for most physicians. The NEJM article is a must read for any physician who wants to see what’s really hiding under the bed -- you might find that it's really not so scary.
 

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According to a statement by Governor Edward G. Rendell as reported by the PR Newsire, malpractice reform in Pennsylvania has been a dramatic success.  Governor Rendell noted that malpractice filings statewide declined by 41% between 2002 and 2008. The Governor also noted that over the past three years, the two largest commercial medical malpractice insurers have either decreased their base premiums or kept them flat each year in Pennsylvania. In light of the improved malpractice environment in the State, Governor Rendell intends to propose a phase-out of the Mcare program. The PR Newswire story can be viewed here.
 

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According to a recent article in the Patriot News, Governor Rendell has outlined the costs associated with his plan to provide health insurance for Pennsylvania's uninsured population.  The plan calls for increases in taxes on tobacco products and would tap into the MCARE fund to cover the health insurance costs.  However, according to Rendell, the plan would result in enough money to ultimately eliminate the MCARE premiums currently charged to physicians.  According to the article, Governor Rendell is seeking physician support of his plan, which, with minor modification, the Pennsylvania House of Representatives has already approved.  Rendell has already said that unless Pennsylvania legislators are able to work out a deal to expand the State’s uninsured health insurance program, he will not approve extension of the MCARE abatement program.  

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Medtronic (and by default, all medical device manufacturers) scored a huge win on Wednesday when the U.S. Supreme Court held that medical device manufacturers cannot he held liable in tort actions for medical devices that have gone through FDA pre-market approval.  The case in question was brought by the estate of a man injured when a balloon catheter manufactured by Medtronic burst.  While the issue of preemption of tort liability under the federal Medical Device Amendments of 1976 have been the subject of debate in the federal courts, the Supreme Court's action will likely end that debate for the time being.

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Much to the chagrin of practicing Pennsylvania physicians, the issue of MCare premium subsidies became a political football earlier this month when Governor Ed Rendell said he would not approve the 2008 MCare subsidy until Pennsylvania lawmakers acted on his proposal to expand the state insurance program to uninsured adults.  The proposal calls for using a portion of the MCare surplus to pay for the expanded insurance benefits.  However, according to an article in the Philadelphia Inquirer, Governor Rendell is considering allowing physicians to delay paying their MCare premiums until the debate over the proposed program is resolved and the MCare subsidy legislation is officially extended.  This approach, according to the Governor, likely makes better sense than requiring the premiums to be paid and then later refunding them.  Stay tuned ...  

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You may recall from a July 2 posting on this blog that the Insurance Department was considering changing the required level of malpractice coverage Pennsylvania physicians must maintain (before MCARE coverage) from $500,000 to $750,000.  Pennsylvania doctors can breath a sigh of relief, at least for now.  According to a July 20, 2007 Press Release, the Department has decided against increasing malpractice coverage requirements for physicians in Pennsylvania.  Citing an actuarial report done by Pricewaterhouse Coopers, Deputy Insurance Commissioner Randy Rohrbaugh cited a lack of evidence that the market is ready to bear such an increase at the present time. 

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If certain changes currently under consideration by the Pennsylvania Insurance Commissioner go into effect, Pennsylvania Physicians could end up paying a significantly larger malpractice insurance bill next year.  Specifically, the Insurance Department is considering changing the required level of coverage Pennsylvania physicians must maintain (before MCARE coverage) from $500,000 to $750,000.  According to a recent article in the Pittsburgh Post-Gazette, some physicians believe that the malpractice crisis in Pennsylvania is far from over and that such a change will only serve to reinvigorate the crisis. 

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According to a report released on May 24, 2007 by the American Association for Justice (AAJ) and the Pennsylvania Trial Lawyers, the medical malpractice insurance industry has been price-gouging doctors through excessive premiums.  The study, based based on annual reports from the top 15 medical malpractice insurers as rated by A.M. Best, suggests that premiums continue to skyrocket even though actual and projected losses dropped by 48% between 2003 and 2006.  A copy of the full report can be found here.

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The Pennsylvania Insurance Department published today the annual MCARE assessment to be levied for calendar year 2007.  The 2007 assessment will be 23% of the prevailing primary premium for each participating health care provider -- 6% less than for calendar year 2006.  The MCARE statute defines ''prevailing primary premium'' as the schedule of occurrence rates approved by the Insurance Commissioner for the Joint Underwriting Association.  The 2007 assessment is published in today's Pennsylvania Bulletin.  More information on the assessment and the MCARE program in general (including the abatement application form) can be found at the Office of MCARE website.

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