Malpractice: Close-up on a crisis

We examine the unprecedented job actions staged and contemplated by New Jersey doctors from a unique viewpoint—as reporters and patients.

By Barbara Weiss
News Editor

If you had closed your eyes, it might have been the '60s all over again, as thousands of protesters stood before the New Jersey state capitol in Trenton, waving signs and chanting hoarsely in response to speakers:

"What do we want?"

"Tort reform!"

"When do we want it?"

"NOW!!"

The rally itself was not unlike those in other states in recent years. But it was just a part of a weeklong "job action"—the longest in the nation—in which many doctors closed their offices to patients in order to force state legislators to enact reform.

As a medical reporter and the wife of a New Jersey obstetrician, I'd heard physicians complain for years about a legal system that seemed stacked against them. But I'd never heard so many doctors raising their voices as one to demand effective reform—and to declare their willingness to back up their demands with action.

With this unprecedented activism emerging on our doorstep, Medical Economics' northern New Jersey staff found itself participating in the story not only as writers and editors, but as patients—at times cut off from access to our usual sources of medical care. Our staff fanned out to speak to physicians, hospital personnel, and patients to bring you this portrait of medical care in turmoil and what follows when the TV cameras and protesters go home.

Setting the stage for the crisis

Like many physicians around the country, New Jersey doctors have been battered by huge increases in professional liability insurance premiums. Many are leaving the state, giving up high-risk procedures, or retiring early. Obstetricians' premiums increased by 67 percent this year, and many now pay more than $100,000 a year. In response, about a quarter of them have stopped delivering babies and more are ready to make that decision soon. Neurosurgeons have been equally hard hit. Last year, there were 85 practicing in New Jersey. Today there are 65.

And the problems aren't confined to the traditional high-risk specialists. "FPs are also high-risk," says Arnold Pallay, a past president of the New Jersey Academy of Family Physicians. Pallay has delivered babies for 18 years, but these days, it's difficult to find an obstetrician willing to cover deliveries because of the liability risk. In the current environment, Pallay is reluctantly considering giving up obstetrics. "I was once hoping to deliver some children of the patients I delivered," he laments.

Another reason primary care practitioners are feeling the heat is that they are often dragged into suits when they refer a patient who ends up with a bad outcome, says FP Terry Shlimbaum, who practices in Lambertville, NJ, and is current president of NJAFP. "New Jersey FPs had a 75 percent increase in their premiums over the past two years. And getting pulled into even one claim since 2001 made their premiums increase by 170 percent," he explains.

The magnitude of the problems has forced the physicians into uncharacteristic unity and activism.

Physicians protest in unprecedented numbers

Here's what New Jersey doctors want: caps on noneconomic damages ("pain and suffering") of $250,000, a shorter statute of limitations, and stringent requirements for expert witnesses. In 2002, physicians met with the governor and state legislators and testified at hearings to explain their plight and push their goals.

The bills that emerged from the Senate and Assembly included neither a cap on noneconomic damages nor any of the other strong measures the doctors had urged. The cap was the "line in the sand," according to Eric Munoz, a critical care surgeon who is a state assemblyman as well as chief of staff at the University Hospital in Newark. Physicians rejected the bills as ineffective and, in January 2003, began to organize.

In county after county, hospital after hospital, physicians voted overwhelmingly to participate in a weeklong "job action." (Everyone was careful to avoid the word "strike.") For the week of Feb. 3, physicians would close their offices and see no patients except for emergencies. Emergency departments would gear up to handle patients who suddenly had no access to their physicians' offices.

Physicians recorded special phone messages, or told their staffs to instruct patients to go to the ED. They handed out leaflets to patients to explain the job action, gave them form letters to send to their legislators, and circulated petitions. Organizers created a Web site ( www.njpatients.org), and a special hotline to allow patients to voice their support. (By May, the legislators would receive 35,000 letters and more than 15,000 phone calls.) The New Jersey Hospital Association, and many individual hospitals, took out newspaper ads in support of the job action.

This media blitz didn't go unopposed, however. Trial lawyers' associations held press conferences in which victims of medical malpractice were paraded before the cameras.

When doctors don't go to work

Most observers agree that when Monday, Feb. 3 arrived, a majority of New Jersey physicians closed their offices or saw only emergency patients. No one on the Medical Economics staff found a physician's office conducting business as usual.

Female staffers who needed an ob/gyn were especially hard put to find one. One staffer's women's health group was accepting OB patients only on a "clinic" schedule without appointments—first come, first served. And once in the office, they were asked to visit the "McGreevance room" where phone lines were set up so they could call Gov. James McGreevey or their legislators.

The decision to turn away patients was not taken lightly, and in some cases was made only at the last minute. One Medical Economics editor was assured a week before the job action that her doctor's office would remain open, and that the doctor would be at her job. On the day of the slowdown, however, the doctor's answering service told callers that she would not be available for appointments that week.

Hospitals around New Jersey added staff in their emergency departments and provided fleets of buses to transport physicians to Trenton for a rally on Tuesday. At Hackensack University Medical Center, Acting Chief of Staff Peter De Mauro told me that they'd also beefed up telephone triage. When senior editor Wayne Guglielmo visited Pascack Valley Hospital, in Westwood, on Monday he found what Phillip La Stella, head of emergency medicine, described as a "wild" day in the ED. The hospital's facility for minor ailments saw more than twice as many patients as usual that day.

Even facilities in rural areas felt the impact. At Newton Memorial Hospital in Sussex County, spokesman Brian Grace told senior editor Dennis Murray that the ED waiting room was the busiest he'd seen in his eight years with the hospital. Chief of Emergency Medicine David Mattes reported that his department saw about 50 percent more patients than on a typical weekday, many of them children—"mostly nonacute stuff normally seen by primary care doctors in their offices."

The next day, thousands of physicians and their supporters gathered in Trenton. On a bus from Hackensack, I found physicians of every specialty, including those not yet affected by rising premiums, who had come to support their colleagues.

At the rally, a drenching rainstorm forced the protesters—physicians, staff, and patients—to loft a huge canopy of open umbrellas, but the energy of the crowd beneath was undiminished. Speaker after speaker exhorted Gov. McGreevey and the legislators to pass a tort reform bill that capped noneconomic damages, and warned of the dangers to quality health care if more New Jersey physicians were forced out of practice.

An initial legislative victory sours

Although many surgeons and ob/gyns stayed out all week, other New Jersey physicians drifted back to work by midweek. Even so, the phenomenon of thousands of marching doctors initially generated just the response New Jersey physicians were looking for. The media covered it extensively. Almost immediately, a bipartisan committee in the state Senate, where party control is split evenly, met to amend the Assembly's tort reform bill.

What emerged was a compromise. It created a cap on noneconomic damages of $300,000 for physicians, but established a catastrophic fund for additional damages—albeit one that had limits on what it could pay out. The fund would be paid for by a surcharge on licenses of physicians and other professionals.

The amended bill went to the full Senate on March 20 and passed 32 to 5. (All five who voted against it were lawyers.) It was a remarkable achievement in that few had initially given tort reform much of a chance.

A much tougher battle loomed in the Assembly, however. That body is heavily Democratic, and the trial lawyers' associations are generous contributors. Physicians called for a second rally on May 15 to lobby the Assembly.

This time the rally was not billed as a "job action"; Mark Olesnicky, an internist who had just become president of the Medical Society of New Jersey, pointedly told the crowd that "for every doctor here, there's another doctor working, taking care of patients."

Even more physicians participated in the second rally. Perhaps 8,000 to 10,000 of them created a sea of white coats before the capitol building, waving signs. ("Having a baby? Call your lawyer," read one.) Several legislators called it the largest rally they'd ever seen on the capitol steps.

A parade of state senators now wanted to be remembered as supporters of the compromise bill—and were roundly cheered. Patients testified to their need for physicians. A medical student warned that medical education was being compromised by the need to practice defensive medicine.

The Assembly's offer of a subsidy for premiums was scornfully rejected. "There is no example of a working malpractice subsidy system in the United States," declared ob/gyn Ruth Schulze, president of the Bergen County Medical Society. The AMA has identified 19 states in malpractice crisis, she noted, and six states where malpractice rates are stable. "What's the difference between the stable states and the crisis states? Caps."

Even after the rally, however, it seemed apparent that the votes in the Assembly just weren't there. Physicians attempted to keep the issue in focus with a "rolling job action" that saw doctors from each county take to the steps of the state capitol for one day during the last 10 days of the legislative session.

In the end, it was New Jersey's annual budget crisis that swept any meaningful discussion of tort reform off the agenda. Legislators spent the last day of the session wrangling over the budget, then recessed until after elections in November. Prior to that, the Assembly had passed its own version of a tort reform bill—with none of the measures the physicians had demanded—and sent it back to the Senate, which took no action on it. Tort reform for 2003 was, essentially, dead.

And the bad news kept coming. In June, an insurance rating firm downgraded the state's largest malpractice carrier, Princeton Insurance, which covers more than half of New Jersey physicians and hospitals. (In 2002, another large New Jersey insurer was forced to stop writing policies and reorganize on a smaller scale.) Princeton said it had already taken steps to ensure an adequate surplus to cover New Jersey liability needs, but it had recently increased premiums dramatically, with some physicians reporting hikes as high as 90 percent.

Then, in mid-July, the company announced that it would temporarily suspend writing new policies. The possibility that the company might raise rates even higher—or face tougher financial times—suggested to some that New Jersey's malpractice climate was turning into the perfect storm.

"Remember November" is the latest cry

Physicians vow that the fight isn't over. As the legislature recessed, they declared a "100-Day Countdown" to a job action that threatens to be more far-reaching than the one in February. On Oct. 7, they say, they'll close their offices for an indefinite period and hit the campaign trail to bring their message to the public in the final month before statewide elections in November.

Arnold Pallay says that although he doesn't like job actions, the one in February "did what it needed to do. Six months ago, no one knew about the malpractice crisis. Now patients understand and care. Physicians have to be politicized and energized," he notes, and must work to defeat those who didn't support tort reform.

At the rally in May, one legislative supporter referred to the "sleeping giant" of physician power, and warned doctors, "Don't go back to sleep. If you keep at it, you'll win, because my colleagues understand one thing above all else—the next election."

Whatever doctors do next, however, will have to be on a grander scale than any previous job action. Physician and state Assemblyman Eric Munoz says that physicians' political activity until now has been "like a Little League team playing in the majors." But if the doctors can seriously organize themselves, he believes, there's hope: "When doctors change the outcome of an election in one or more of the 40 electoral districts, then you'll start to see people thinking about change."

Perhaps. But at this point, after all the organizing efforts, all the disrupted practices, all the hopes so far unrealized, no one could blame Garden State physicians from asking: Was it worth it? How they'll respond to the call to arms in October remains to be seen.

Tort reform around the country

New Jersey isn't the only state where the malpractice crisis has led to action by physicians.

The year began with surgeons in West Virginia staging a hospital walkout to protest their soaring malpractice premiums. There were similar walkouts in Florida and Mississippi. In May, several thousand Pennsylvania physicians refused to see patients, while surgeons and ob/gyns in Jacksonville, FL, closed their offices.

Meanwhile, doctors in about a dozen states have staged large rallies and protests. Most of these have been labeled "Doctor Awareness Day" or "White Coat Rallies." Activists outside New Jersey have been careful to avoid the suggestion of a physician "strike" or job action.

Legislative action has been spotty. Florida, Idaho, Texas, and West Virginia have enacted caps on noneconomic damages. Arkansas placed a $250,000 cap on punitive damages. Nevertheless, in most states, comprehensive tort reform remains an elusive goal.

On the national level, a reform bill supported by the AMA that calls for caps on noneconomic damages passed the House but not the Senate, despite support from Majority Leader Bill Frist and President Bush. For the first time, tort reform seems likely to be a factor in national elections.

Barbara Weiss. Malpractice: Close-up on a crisis.

Medical Economics

Sep. 5, 2003;80:26.