Can tort reform help save health care?

After 28 years, Roop Shivpuri couldn't afford to be a doctor any more.

At the end of her medical career, Shivpuri, now the president of the Kane County Medical Society, was paying $135,000 a year for malpractice insurance for her Elgin practice.

The ob/gyn calculated that, based on the amount she was making versus the amount she was paying for malpractice insurance, she was basically doing the first six months of each pregnancy for free.

"I was drawing from my savings for several months before I thought, 'What am I doing? This makes no sense,'" she said.

She opted for an early retirement, dissolving her practice two years ago this month.

Although Illinois is one of a handful of states that have set a cap on malpractice awards, Shivpuri, now 63, is among those who see more extensive malpractice reform as key in the overhaul of the nation's health care system.

Without these reforms, even the public option proposed by President Obama would just be adding another insurance company to the mix, she said.

While most jokes about lawyers imply greed, corruption and the professional courtesy of sharks, doctor jokes generally go no further than to say they all play golf.

But the junction of the legal and medical professions comes in malpractice law, a field where both professions feel they're the victim.

Howard Peters, senior vice president for government relations for the Naperville-based Illinois Hospital Association, said excess liability is responsible for $100 billion in health care costs every year. This is because physicians and other health care workers feel they must go to great lengths to guard against "unfair lawsuits."

"We strongly believe that if you want to reform health care and you want to squeeze costs out of the health care system, you're going to have to do comprehensive liability reform," said Peters.

St. Charles attorney Peter Flowers is president of the Illinois Trial Lawyers Association. He believes malpractice reform is a giant red herring in the debate.

"I refuse to call this reform. There is no reform in this. It's limiting the rights of people who have been injured," he said, citing a Congressional Budget Office report that malpractice costs make up one-half of 1 percent of health care costs.

Would it matter?

One-half of 1 percent seems like a small figure.

However, one-half of 1 percent for the health care industry still amounts to $11 billion. And that number is for this year alone.

In an Oct. 9 letter to Sen. Orrin Hatch, R-Utah, CBO Director Douglas Elmendorf wrote that a tort reform package including caps on noneconomic damages and time limits for how long after an accident someone can find an injury would have long-reaching effects over time.

"Combining the effects on both mandatory spending and revenues, a tort reform package of the sort described earlier in this letter would reduce federal budget deficits by roughly $54 billion over the next 10 years," Elmendorf wrote.

And for the doctors, it would result in a 10 percent reduction in malpractice premiums, Elmendorf wrote.

Shivpuri said caps on pain-and-suffering damages are only part of the equation.

"According to (the Kane County Medical Society), that sensible malpractice reform should be expert witness qualifications, there should be nonbinding arbitration and we need to have health courts, specialized health courts, but only a physician who has practiced medicine can determine if malpractice has occurred," Shivpuri said, adding blame and damages are currently determined by juries.

"We are judged by a plumber maybe, we are judged by an office employee and they do not know what the practice of medicine is all about," she said.

The Medical Rights and Reform Bill — sponsored by U.S. Rep. Mark Kirk, R-Northbrook, and cosponsored by Rep. Judy Biggert, R-Hinsdale, and 18 other House Republicans, and otherwise known as HR 2516 — includes a suggestion to "encourage states to adopt 'alternative to litigation' reforms such as early disclosure and compensation, administrative determination of compensation and specialized health care courts."

The proposal also calls on doctors to consider practice guidelines supported by clinical evidence as a way of reducing defensive medical practices, and includes "stabilized compensation" for those who are injured in the course of receiving treatment.

Flowers said many doctors seem to forget that Illinois has had malpractice caps since the 2005 Medical Malpractice Act. And premiums are still high.

"That's all something we've learned since 2005 is not the case. Premiums did not get reduced in Illinois other than slightly. And that was when the Illinois Department of Insurance reduced them," Flowers said.

But the costs to the medical profession are mounting, with an increasing number of the most experienced doctors looking at getting out of the field, Shivpuri said.

"One-third of the U.S. physicians are my age group, and a lot of them are retiring prematurely," Shivpuri said.

Talking it up

Scott McKibbin doesn't dismiss a connection between the suits and the costs. The Naperville health care consultant helped set public policy during the state's tort reform effort in 2005.

Defensive medicine drives up costs substantially, McKibbin said, and the expense is compounded when screenings and other costly procedures are repeated by different providers. Placing test results on discs that can be shared among medical facilities readily eliminates those added outlays and reduces patients' inconvenience and discomfort, he said, though it's not routinely done.

Shivpuri said doctors will continue to practice defensive medicine, ordering every unnecessary test and adding billions in medical costs until limits are set on malpractice suits.

"When a patient comes to see me, I will always have in the back of my mind that this is a patient who can sue me," she said.

Also complicating the task of bringing down costs are cases in which doctors follow established medical protocols, but something beyond their control goes wrong — and the case ends up in court.

"Sure, somebody needs to have a forum to address some of these true medical errors or mistakes, but if you're talking about an outcome that the doctor really didn't have anything to do with ... this is clearly one of the reasons why the United States has one of the most expensive health care systems in the world," McKibbin said.

As for Shivpuri, she did not recommend medicine when her two children, now adults, came to her for career advice.

"I told my son, if you can't beat them, join them," she said. "He's an attorney."