Thursday, April 21, 2005

Called and Raised.....
Unless some physician behavior is changed I fear that the gains made in tort reform will be lost. I'm not talking about "sloppy medicine" or "bad doctors". I am referring to physicians inability to live up to the perhaps unspoken agreement that assisted passage of tort reform, at least in Georgia.
Look at section I of SB 3, which was signed into law in February (emphasis mine):
The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well-being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act.
The "problem of access" was the rather large club used to bludgeon legislators into giving the physicians of Georgia essentially everything they wanted. Access to services can be lost by physicians closing up shop, or more commonly, refusing to take ED call. The latter was addressed specifically by section X4(b), the section raising the negligence burden for emergency cases: (emphasis mine)
The General Assembly makes the following findings: Georgia hospitals operating dedicated emergency departments are required by both state and federal law to provide examination and treatment to individuals who come to a dedicated emergency department, without regard to the financial or insurance status of such individuals. Hospitals and other health care providers have complied with these laws to their financial detriment and under the well-founded apprehension of increased liability. Due in large part to fear of such liability, hospitals are experiencing extreme difficulty attracting a sufficient number of physicians and other health care professionals to maintain an effective team of professionals, including on-call physicians, to provide needed care and assistance to citizens of this state. As a result, many hospitals are being forced to close their emergency departments or forgo other needed improvements in order to financially support such emergency services and their attendant liability. The shortage of these emergency providers poses a serious threat to the health, welfare, and safety of the citizens of Georgia.

Implicit in the above is that, if the problems are fixed, then physicians will return to the ED call schedule. However Big Hospital's plastic surgeons are coming off staff and the urologists and ENT physicians are threatening to do so as well. They recognize the benefits of tort reform but are leaving based on such things as reimbursement and "having to come in in the middle of the night". While those are valid complaints, and similar to one's I have made myself, I fear that we may be penny wise and pound foolish. I fear that if the access problem does not improve that the legislature will undo most of the reforms or use other methods to improve access.
The benefits of tort reform are not only seen in the emergency department but everywhere we treat patients. The opponents of tort reform are well organized and will no doubt pounce on this issue if physicians allow it to do so.
The efforts toward tort reform in other states may suffer as well. Those opposed could point to Georgia and the access problems that remain after tort reform and claim that the main argument for altering the civil justice system is a false one.
Maybe physicians are waiting to see how the inevitable court challenge plays out. Perhaps they are afraid of getting back into it, only to find themselves exposed at a later date if the court overturns some reforms. But I worry that the patience of the public and the legislature may not last that long.
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