Does Medical Malpractice Affect Access to Medical Care?


In a recent post, I asked the question whether or not people would favor providing some type of immunity to emergency physicians if doing so would increase the availability of emergency medical care.

So far, about 75% of people answering that question voted “yes.”

Some of the attorneys that read this blog were all over me.

In particular, Max Kennerly, an attorney with a plaintiff’s law firm and someone whose opinions are generally cogent, thought that immunity would do little good in improving access to emergency care since “There’s no evidence malpractice — which is at the very most 1.5% of healthcare costs — is a major contributing to the lack of access to emergency care in this country. You could eliminate malpractice liability entirely and barely dent access to emergency care.”

In response, I cited an article listing several examples to support my assertion.
Highlights from the article are below.

  • A 2005 hospital ED administration survey also lists “malpractice concerns” as the principal factor discouraging specialists from providing ED coverage.
  • Furthermore, because liability premiums have outpaced payments for their services, some surgeons have concluded that they simply cannot afford the added liability risk for a largely uninsured patient population.
  • In addition, younger surgeons, who often take the on-call shifts at trauma centers, are leaving states with the most severe liability problems.
  • For example, according to the Project on Medical Liability in Pennsylvania, funded by the Pew Charitable Trust, “Resident physicians in high-risk fields such as general surgery and emergency medicine named malpractice costs as the reason for leaving the state three times more often than any other factor.”
  • Further, an American Hospital Association study found that more than 50 percent of hospitals in medical liability crisis states now have trouble recruiting physicians, and 40 percent say the liability situation has resulted in less physician coverage for their EDs.
  • The crisis has even forced the closure of trauma centers in Florida, Mississippi, Nevada, Pennsylvania, and West Virginia at various times in recent years.
  • Specialties that have experienced particularly high premium increases—including neurosurgery, orthopaedics, and general surgery—are also among those that provide services emergency patients most frequently require.
  • According to a report from the General Accounting Office, soaring medical liability premiums have led specialists to reduce or stop on-call services to hospital EDs, seriously inhibiting patient access to emergency surgical services.

Max then responded to the articles I cited by stating that they were biased “surveys and a summary for a hospital lobbying group.”

After all, some of the data were based on surveys of *gasp* doctors.

Max, you lost me, there. If you want to know about doctors’ liability fears or if you want to know why doctors are leaving one state for another state, who are you going to ask? Grocery clerks? School teachers? Attorneys? Would the surveys have been more persuasive if they asked a bunch of nuns what effect they thought that medical malpractice liability would have upon the access to medical care?

Of course the survey participants were doctors. Those are the people whose opinions everyone is seeking.

So I spent about 45 minutes doing some further research on the internet and on some paid medical web sites. I decided to make this a separate post so that if anyone else was searching the internet looking to find out whether malpractice affects access to medical care, you can pick up on the work I’ve done.

Below the fold are some more “nonexistent” studies that support my assertion. Funny, but I haven’t seen one link to any study that asserts the opposite. Oh, and if you do happen to find something … mind you – no surveys from biased lawyers, now.

In court, I believe the term is “uncontroverted evidence.”


Review of the professional medical liability insurance crisis: lessons from Missouri merit prizeAmerican Journal of Obstetrics and Gynecology – Volume 190, Issue 6 (June 2004) Erol Amon, MD, JD; Hung N. Winn, MD, JD

In 2001-2002, many insurers stopped writing new and existing PLI. A survey found 1 in 7 physicians had their PLI terminated and/or application for new insurance denied. Average premiums increased 22% in 2001 and 60% in 2002. Accordingly, 50% of surveyed obstetricians took salary cuts, 18% secured loans, 9% liquidated assets, and 55% significantly limited their clinical services. An adverse court ruling caused insurers to double reserves. Incomplete data led the Missouri Department of Insurance to erroneously conclude a decrease in claim frequency and severity. In contrast, courthouse records and missing data sources revealed increased malpractice filings. PLI premiums continue to rise.

Many life-saving specialists are being forced out of business. Specialists are less willing to care for emergency and indigent patients for fear of liability exposure. Legislative enactments leading to meaningful tort reform, public support, and judicial restraint must occur to save health care.


EMTALA and the Ethical Delivery of Hospital Emergency Services
Emergency Medicine Clinics of North America – Volume 24, Issue 3 (August 2006)Robert A. Bitterman, MD, JD
The on-call issue is complex highly politically and economically charged, and EMTALA is only one reason driving the diminishing availability of on-call services by US physician specialists. The uncompensated care burden, malpractice liability issues, decreased reimbursement from Medicare and Medicaid, difficulties obtaining payment from managed care entities, and lifestyle issues are more or equally compelling reasons physicians avoid emergency department on-call services.


Medical Malpractice: The Good, the Bad, and the Ugly
Urologic Clinics of North America – Volume 36, Issue 1 (February 2009)
Kevin R. Loughlin, MD, MBA

Over the past several decades, as the malpractice crisis has intensified, there has been increasing focus on the impact of malpractice costs. The first major attempt at limiting caps was the California Medical Injury Compensation Reform Act (MICRA), which was passed in 1975. This legislation was passed in response to skyrocketing judgments in malpractice suits and dramatic increases in malpractice insurance premiums and decreased access to health care.[3] The malpractice environment in California at that time included a 200% increase in the number of malpractice claims in the preceding 10 years and a 1000% increase in the dollar amount of judgment awards in the prior decade. In California, since MICRA was enacted, benefits to the health care system have accrued. Specifically, lower malpractice premiums, improved patient access to care, and earlier and more equitable settlements have occurred since the passage of MICRA.[3] Malpractice caps alone have not proved, however, to be the panacea to the malpractice crisis that they were initially thought to be.***The authors identified two categories of defensive medicine. The first was “assurance behavior,” or ordering more diagnostic tests than were medically indicated. The second was “avoidance behavior,” where high-risk patients are referred to other providers. Urologists are also affected by defensive medicine. A recent survey among urologists reported that 58% are considering referring difficult cases and 60% are considering limiting the scope of their practice.


GOVERNOR RENDELL UNVEILS MEDICAL MALPRACTICE LIABILITY REFORM PLAN PLAN AIMS TO ENSURE PATIENT SAFETY, ACCESS TO QUALITY HEALTH CARE FOR ALL PENNSYLVANIANS Governor’s proposal is a comprehensive solution to the current crisis developed after months of research and study on this national crisis.   Based on recommendations from the Governor’s Task Force on Medical Malpractice, Governor Rendell will work with the state legislature to implement real change in the system by helping physicians with the cost of medical malpractice coverage for the next three years through state payments of Medical Care Availability and Reduction of Error (MCARE) premiums, as well as implementing patient safety initiatives, along with tort reforms and insurance reforms.  Governor Rendell said the main purpose of his proposed reforms, along with comprehensive reforms of 2002 and 2003, is greater availability and affordability of medical malpractice insurance.



“The United States is facing a crisis that in the end is going to harm patients. One has to look no farther than my home State of Florida where some obstetricians/gynecologists are paying in excess of $200,000 per year for their liability insurance. Or Mississippi, where neurosurgeons have been leaving the State to practice in Louisiana which has significantly lower insurance premiums.
The most disturbing indication of the severity of this crisis, however, might in Las Vegas, where the county-operated trauma center was forced to close because the Center’s trauma surgeons could no longer afford to risk their livelihoods in this climate of runaway litigation. I’m advised that the trauma center recently reopened, which will spare the city from the dubious distinction of being the largest metropolitan area of the United States without a trauma center.


The United States has seen steady increases over the past several years in both jury awards and malpractice suits and the average amount paid by insurance companies for claims merely alleging malpractice. However, California has remained relatively immune to the pressures brought about by these trends, largely thanks to MICRA. It is a time tested system that certainly seems to work and we should not be discarding any consideration of that type of a process.


The point of this, Mr. Chairman, is that doctors have raised valid concerns about medical malpractice insurance premiums, about access to medical malpractice coverage, about the nature of medical malpractice litigation itself. But the current medical malpractice crisis and it is undoubtedly a crisis because of its effect on patients, first and foremost, and on physicians, importantly, the current crisis should not be used as an excuse to decimate a system that protects patients and doctors. We shouldn’t use this hearing as an excuse to beat up on the insurance industry or to demonize lawyers or to trivialize the concerns of providers or dismiss the legitimate rights of patients. The doctors in my District and others around the country whom I know and whom I respect, have no problem with being held accountable as long as the system is fair.
Mr. Chairman, this crisis affects more than just patients and doctors. Recently, the orthopedics practice that was to cover the Doylestown Hospital emergency room on a weekend found that its insurance coverage would lapse. After months of searching, the hospital then had to find other practices to cover the ER. Other orthopedics practices are also having trouble finding insurance in the area. What happens when we can’t find orthopedists to treat the broken bones and dislocated joints in the ER on weekends? Worse, St. Mary’s Medical Center, the only trauma center in Bucks County, faced closing its doors last fall since it could not find insurance. Luckily, the State came through with emergency coverage. However, this is not sustainable in the long run. Las Vegas, for the past few weeks, as we’ve seen in the news has not been so lucky.  This is about patients, doctors and health care institutions where care is delivered. This is not merely a crisis. It is more than that. It is beyond a meltdown. It is a full-blown catastrophe that is having a damaging and detrimental impact on the health care of Pennsylvania and millions of Americans.  Worse, this catastrophe will result in people dying because trauma centers will continue to close their doors or emergency rooms will be unable to provide care since doctors won’t be available. I am saddened and angered that this catastrophe is having permanent and long term effects, weakening hospitals, debilitating medical schools, reducing the number of doctors who practice and destabilizing health care institutions.  The cause, Mr. Chairman, is clear, unfettered litigation. The median malpractice by jury awards rose from $500,000 in 1995 to $800,000 in 1999. We need reforms now.

[There were many more states mentioned with similar examples – these are just some highlights]

  • Florida: Double- and triple-digit premium increases have forced some doctors to cut back on staff, while others have left the state or have stopped performing high-risk procedures to avoid the lofty rates. Ob-gyns in this state are more likely than their colleagues in other states to no longer practice obstetrics.
  • Mississippi:  According to the Mississippi State Medical Association, medical liability insurance rates for doctors who deliver babies have risen 20% to 400% in the past year, depending on the carrier. Annual premiums range from $40,000 to $110,000. In Cleveland, Mississippi, three of the six doctors who deliver babies dropped that part of their practice in October 2001 because of the increase in premiums. In Greenwood, Mississippi, where approximately 1,000 babies are born every year, the number of obstetricians has dropped from four to two. The two remaining obstetricians are each limited to delivering 250 babies per year, leaving approximately 500 pregnant women searching for maternity care, reports the Mississippi Business Journal. In Yazoo City, Mississippi, which has 14,550 residents, there is no one practicing obstetrics.
  • Nevada: In December 2001, The St. Paul Companies, Inc., the nation’s second largest medical liability insurer, announced it would no longer renew policies for 42,000 doctors nationwide–including the 60% of Las Vegas doctors who were insured by St. Paul. Replacement policies are costing some Nevada doctors four or five times as much as before: $200,000 or higher annually, more than most doctors’ take-home pay. A February 2002 survey of Clark County ob-gyns, commissioned by their ob-gyn society, revealed: 60% indicated that they are going to drop obstetric care from their practices because they cannot afford the increases in their professional liability insurance. 42.3% are making plans right now to leave the state if there is no resolution in the medical liability situation in the next couple of months. 78% percent indicated that they ultimately will have to leave the state if there is no long-term solution. According to a March article in the Las Vegas Review-Journal, many Las Vegas Valley doctors say they will be forced to quit their practices, relocate, retire early or limit their services if they cannot find more affordable rates of professional liability insurance by early summer.
  • Pennsylvania: Philadelphia and the counties surrounding it are hardest hit by the liability crisis. From January 1994 through August 2001, the median jury award in Philadelphia for a medical liability case was $972,900. For the rest of the state, including Pittsburgh, the median was $410,000. One-quarter of respondents to an informal ACOG poll of Pennsylvania ob-gyns say they have stopped or are planning to stop the practice of obstetrics. 80% of medical students who come to the state for a world-class education ultimately choose to practice elsewhere, according to the Pennsylvania State Medical Society.
  • Texas: Preliminary results of a recent Texas Medical Association physician survey indicate that more than half of all Texas physicians responding, including those in the prime of their careers, are considering early retirement because of the state’s medical liability insurance crisis and nearly a third of the responding physicians said they are considering reducing the types of services they provide because of recent premium increases for medical liability.


Critical health care services leaving
The cost of medical malpractice insurance is forcing physicians to relocate.


  1. My medical school had ONE ophthalmologist who did eye muscle surgery and taught the residents how to do it. He does a LOT of clinic work as well, though. Eventually his malpractice premiums (despite a clean record) outstripped his pay for doing the eye muscle surgery. He has an odd financial arrangement and thus was essentially paying out of pocket to do surgery. He recently went to an entirely non-operative practice. So unfortunate on so many levels.

  2. Here is a way to drop health costs by 50%, and to provide top of the line executive style health insurance to 20 million families. Stop the lawyer.

    It goes way beyond medmal. Medmal causes 2% direct leakage to enrich lawyers. It induces 10% defensive medicine, which enriches doctors for worthless services.

    It causes worthless end of life, as doctors get bullied into tormenting dying old people by vicious family bullies. The lawyer is the enforcer for these awful, selfish people.

    The lawyer causes gold plated accreditation standards devoid of scientific validation. JACHO should be crushed.

    It goes on.

  3. I have proposed the mass, simultaneous arrest of the lawyer hierarchy by Federal Marshals sent by a strong non-lawyer executive. These cult criminals get one hour fair trials for their insurrection against the Constitution. The sole evidence will their substantive appellate decisions, executive policies, and their enacted statutes. There should be no lawyer gotchas on collateral corruptions. After the guilty verdicts, they get shot in the head by hooded police in the courtroom basement. Hang their bodies from every courtroom lamppost for a month. To deter the rest of the criminal cult enterprise in control of the three branches of our lawyer controlled government.

    After the elimination of the hierarchy of the criminal cult enterprise, a Constitutional Amendment excludes the lawyer from all benches, all legislative seats, and all responsible policy positions in the executive branch.

  4. It seems a reversion was needed for the site, in the process eliminating a spirited debate in which I of course prevailed and convinced an audience of physicians of the rightness of my position.

    I’ll have to post a more thorough response later. In short: malpractice premiums are a business cost like any other, and so their effect can only be measured in relationship to revenue. The primary source you cited says “declining reimbursement” is the biggest force affecting the ED workforce, while a recent study shows malpractice premiums to be 0.5% of health care costs and shows premiums to be the lowest they’ve been in forty years:

    There have been a few instances in which premiums shot up rapidly — particularly in 2002-2004, after the market collapse caused severe damage to insurance company reserves — and caused providers to move jurisdiction or the limit their practices.

    Otherwise, malpractice premiums haven’t affected the overall market for health care, as the number of doctors joining the market is the same (this number is limited by the number of medical schools graduates and amount of immigration), while the choice of specialty and continuation of practice is due primarily to reimbursement levels. As noted by the GAO study referenced above, even in “crisis” states and even in “crisis” specialties, there’s, at most, sporadic and anecdotal evidence that malpractice premiums have compelled physicians to change or restrict their practices. In the bigger picture, the GAO found no effect at all beyond those handful of instances.

    The GAO study was so unhelpful to the anti-tort lobbyists that the AMA filed a formal objection to it, attempting to limit the GAO’s conclusions to the nine states it specifically studied.

    I imagine, as a matter of economic theory, that total elimination of liability would result in a windfall to health care providers, since they wouldn’t have to pay their premiums. But this windfall would be short-lived, as insurers and the government would swiftly move to take advantage of that by lowering reimbursement, forcing providers back into competing with one another, and shoving reimbursement down to the lowest possible level in which the service is still provided. That is, for example, exactly what happens when regulations or taxes are removed from particular businesses: their suppliers/consumers immediately force them into a new and lower equilibrium.

    • See, Max, that’s what I like about you. You’re obviously suffering from delirium, but you’re still high-functioning. 😉

      Going off topic a little, but I agree that partially immunizing doctors from medical malpractice liability would likely have transient effects. I also agree that if the partial immunization did occur, costs would be cut and the government would likely use lower costs as a cue to decrease reimbursement further.
      The battle would change, though. Right now the biggest battle, real or imagined, is doctors versus some patients and their lawyers. The threat of having your life savings taken away because an attorney and a shady expert might be able to convince a jury that good care really wasn’t so good is a threat that a vast majority of physicians will never accept. No doctor is willing to take even a remote chance at losing millions of dollars. All the news releases put out by malpractice plaintiff firms touting their latest multimillion verdicts do nothing to assuage those fears.
      Insurance companies are friend and foe to both parties. Friend to doctors for providing coverage, foe for sometimes putting economic interests over the interests of the insured physicians. Friend to attorneys for being a source of deep pockets, foe for failing to settle what attorneys consider to be straightforward negligence cases in a reasonable matter.

      Once this battle has been resolved, then another battle will be fought — doctors and patients versus the government. When there is less prospect of liability, doctors will feel more comfortable working with patients as a team and not worrying so much about bad outcomes. In fact, this battle is already being fought, but it is being fought behind the scenes. Pre-authorizations for testing and medications. Refusals to pay for care. Lost bills and EOBs requiring lengthy phone calls to resolve. Sorry, we’re not paying you for six months because you didn’t submit your office address in the “zip+4” designation.

      If payments shrink even further, many more providers will refuse to accept government insurance and patients will be forced to pay for care out of their pockets or will have to wait in long lines to see the remaining providers. Time rationing at its best.

      In addition, less providers will go into medicine and therefore attrition and death of current physicians with less physicians to replace them will translate into even less care being available for aging baby boomers.

      Such a system would benefit the government, though, and the government knows it. Everyone pays into the system through payroll deduction, but fewer and fewer people are able to take out of the system because fewer and fewer doctors are willing to provide the care. Heck, if the government keeps up the payment cuts, maybe the Medicare and Medicaid systems will eventually turn a profit.

      One battle has to be resolved before everyone can turn their attention to the next battle. Right now it is “divide and conquer” and the patients are the ones losing.

      • WC, normally I would agree with you, you guys could make these promises and battle lawyers and injured patients state to state (because it’s not a federal issue) to get that immunity you seek. By the way, do you know ANY physician who has ever lost their life savings?

        But right now, with a President who has staked a lot of his credibility on what is essentially a run at single payer, and filibuster proof majorities in Congress, you guys can’t afford to waste time or effort battling a well financed experienced opponent on an issue which in all reality is a minor risk and impact in your lives (yes, I know you THINK it’s bigger, but I’m talking facts). I’m sure demonizing lawyers seems a lot easier than taking on the behemoth of the federal government, but if you don’t this is all a moot argument.

        What is an undoubtedly large and serious day to day impact is the single payer threat. Tort reform won’t be an issue. You’ll long for the day when your errors were only rarely picked up on, and you got the chance to explain yourselves at trial. Under a single payer system, the govt. will run you through some byzantine claims and review system which may even dock your pay for too many adverse outcomes, regardless of error. Plus the patients will still have lawyers! And that’s not to mention the complete and total control they’ll have over your pay, who you see, how often etc.

        If you continue to waste time on an expensive, state to state battle against lawyers and the victims of malpractice, you might as well embrace single payer wholeheartedly, because it will pass you by before you ever get immunity, or even caps in 50 states.

        You say there will be fewer and fewer doctors, but odds are that’s not true. There will always be people who want to go into medicine. And existing docs aren’t going to bail either, because mid-career they won’t be able to find another job making near what they make and allowing them to maintain their standard of living.

  5. WC – I’ll repost this from the U of WI Business School:
    How do the State Medical Malpractice Laws Affect Access to Health Insurance?
    Sun, J & Schmit, JT

    With 15 percent of the population in the United States lacking health insurance, significant effort is being made to identify solutions. A variety of responses have been implemented, ranging from changes to the insurance regulatory requirements to tax code revisions to legal system modifications. While a large body of literature addresses the effect of legal system modifications on medical malpractice claims and insurance as well as physician availability, we know of no prior research to investigate the effect on rates of uninsured. We test this relationship and discover that caps on non-economic damages are associated with lower rates of uninsured.

  6. If a new surgeon has to pay $250K before seeing the first patient, and is carrying huge debts, there is deterrence to operate. The lawyer has severely curtailed OB. Next will come all surgery, and then any physical procedure whatsoever.

    Liability shrinks an enterprise. Immunity grows it. The self-dealt, unlawful, and unjust immunities of the lawyer and judge have caused an explosive growth in their power and wealth. All of it was produced by productive entities, on whom they feed parasitically.

    If the lawyer and judge refuse to give up these self-dealt immunities, there is full moral and intellectual justification for public self-help. It should begin with a list of lawyers and judges. All productive service and product providers are to boycott them.

    If that does not send a message of self-restraint, then mass arrests of the lawyer hierarchy should begin, under current laws. After an hour’s brief fair trial, they should be immediately executed for their insurrection against the Constitution.

  7. Matt was harassing me as to whether I did the “one thing” proven to reduce malpractice suits – warm fuzzies for the patients. And yes, I do. I’m told over and over again by peers, supervisors, patients, and families that my bedside manner is warm and patient despite the chaos around me.

    That being said, when I’m with a chronic-something or other patient listening to them talk about their pain for the last 6 years and I watch a new patient roll by, ashen, clutching the left side of his chest I’m not really left with a choice as to what I do. If I don’t see that STEMI on the EKG (which I physically can’t if I’m in another room) I can’t activate the cath lab within the proper amount of time (25 minutes from doorway is our guideline). I fall short on JCAHO core measures, which (although the most poorly evidence-based measures I’ve ever seen) have become regarded as standard of care. This type of situation plays itself out over and over again in any given work day. I have to balance spending time with my high-risk chief complaints soothing there feelings with resuscitating my truly SICK patients who don’t so much care how warm and fuzzy I am, but are more concerned with whether they are going to make it.

    • Amy, I’m sorry you felt “harassed”. Wasn’t the intent. I was just curious as to whether the actions you claimed to have taken in response to the risk you perceived really reduced that risk. No need to worry about answering if your feel put out by the question.

    • Well, at the rate we’re going I’ll never really know because I’ll have to keep doing them out of fear of getting sued!

  8. The federal government is a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession. Lawyers make 99% of the policy decisions. The elected officials are figureheads. I do not differentiate between government and the lawyer profession. They control the three branches, and use the power of the gun of government to impose their oppression on the public.

  9. ***** CAGED DEATH MATCH! *****



    I’ll sell tickets.

      • Matt: Do you believe minds can be read? Future rare accidents can be foreseen? 12 strangers off the street can detect the truth using their gut feelings, after those with knowledge have been excluded? That standards of prudence are to be set by a fictional character? Why on earth fictional? To be objective, of course. Then this character is labeled, reasonable, not intelligent, average, common sensical, kind, compassionate, logical, etc. No. Reasonable. Why? Because reason refers to Jesus Christ in Scholasticism, which is the origin of the core doctrines of the law, and is lawless in our secular nation. Every self-stated goal of every law subject is in utter failure.

        Then you call me crazy? Your profession is cuckoo.

        You entered 1L as a modern intelligent person. You emerged believing in supernatural core doctrines by cult indoctrination. This was so good, you do not even know it took place. You just ended up believing in the supernatural and pledging total allegiance to a criminal cult enterprise. And you have no idea what I am talking about, the indoctrination is that good.

  10. W: Anytime.

    Matt refuses to even address whether he supports or opposes ending the privity obstacle to a legal malpractice claim when lawyer carelessness has damaged an adverse third party. Suing everybody is OK in his book. Suing a lawyer is forbidden.

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