PRO/CON Does Medical Malpractice Impact Access to Emergency Care?


Opening Argument
The Impact of Malpractice on Access is Grossly Inflated
by Maxwell S. Kennerly, Esq.
A 2006 American College of Surgeons report concluded, “the single most important factor shaping the [emergency]surgical workforce today is declining reimbursement,” a euphemism for cutthroat health insurer tactics. Last month, Bayonne Hospital sued Horizon Blue Cross Blue Shield for a parade of horribles, such as calling patients, lying about their coverage, and instructing them to leave the ED prior to screening or stabilization.

Against this backdrop, malpractice premiums are at a per-physician thirty-year low. Unbiased analysis of their effect, however, is in short supply. A.M. Best, which rates insurers’ creditworthiness for banks, says premiums represent 0.45% of national health care expenditures; Towers Perrin, an insurance consulting firm, says 1.5%. Least credible is the American Hospital Association, which relies on the Lewin Group, part of Ingenix, a UnitedHealth subsidiary that recently agreed to a $400 million settlement for manufacturing phony fees data to short-change physicians.

After a decade of declining premiums and claims payments in the 1990s, the stock market collapsed, prompting insurers to raise premiums rapidly. In 2003, the peak of the increases, the General Accounting Office surveyed five states with “reported malpractice-related problems” (including Nevada and Mississippi) and four without for the impact of liability on access to care. The GAO found no impact in the latter and “scattered” reductions in the former by providers of ER surgical coverage and obstetricians, most of whom also faulted other “long-standing factors” like reimbursement.  The GAO concluded most reports were “unsubstantiated” and that malpractice liability “did not widely affect access to health care.”


The same report found little evidence of “defensive medicine,” criticizing a widely-cited Health & Human Services report (the source of that “$300 billion” figure) for its transparently flawed generalization from two narrow examples of elderly heart disease treatment. In 2004, the Congressional Budget Office followed up on the H&HS report, even using the same methods, yet “found no evidence that restrictions on tort liability reduce medical spending,” deeming the evidence for defensive medicine “weak or inconclusive” and noting “some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients.”

Such did little to stop a wave of “tort reform” in many states, like capping noneconomic damages and eliminating joint and several liability. Several years later, we have control and experimental groups in our laboratory of democracy.

The 2009 American College of Emergency Physicians’ Report Card on the State of Emergency Medicine is a revelation: of the ten states with an “A” or “B” grade for their “medical liability environment” (the most hostile to patients), six had an “F” for “access to emergency care,” one had a “D-,” two had a “C-,” and one had a “B-,” together averaging below a “D-.”  Mississippi and Nevada, too, took WhiteCoat’s “tort reform” advice: years later, they have, respectively, a “C” and “C+” for liability and a “C-” and an “F” for access to care. Conversely, the nine states with an “F” for liability earned the only “A,” had only one “F,” and averaged a “C” for access to care, better than the national average of “D-.”


But, tort reformers say, there are other factors. That’s my point: the impact of malpractice liability on access to care is so small it appears positive because it is dwarfed by other factors such as Aetna, Cigna and WellPoint, all of whom the AMA recently sued for also using the bogus Ingenix database, and the increase in uninsured or underinsured patients. The big change in the past generation has not been an increase in malpractice premiums or claims (both are at historic lows in inflation-adjusted dollars) but an extraordinary decrease in reimbursement.

A 2003 AMA report found physicians lost $4.2 billion in annual revenue providing unreimbursed emergency care; compare that loss in a single field to the $4.7 billion paid in 2008 to resolve all malpractice claims nationwide. The same study said emergency physicians incurred an annual average of $138,300 in uncollectable fees, double the average insurance premium for specialists and nine times the average premium for primary care physicians. It seems an ounce of reimbursement is worth a pound of tort reform.

Max Kennerly, Esq., is a Philadelphia trial lawyer and author of the blog

Continue to next page for the counter argument by “WhiteCoat”
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Counter Argument

Defensive Medicine is Real…and Goes Beyond Costs
by “WhiteCoat”
Doctors fear malpractice liability. And why shouldn’t they? Last month a woman was awarded $60 million dollars after a cosmetic surgeon allegedly botched her thigh lift. Medical malpractice law firms proudly display news releases about their multimillion dollar malpractice verdicts against physicians.Does malpractice liability affect access to medical care, though? Access to medical care is limited by two factors: Available providers and willing providers. The best vascular surgery program in the world can’t help you if there’s no surgeon available or if you’re 150 miles away when your aortic aneurysm ruptures. Similarly, an abundance of nearby neurosurgeons helps no one with a brain hemorrhage if none of those neurosurgeons is willing to perform brain surgery.


What factors affect whether a provider is available or willing to provide services?

Money undoubtedly affects access to care. Even though patients with Medicaid ostensibly have a means to pay for their care, they often have difficulty finding a physician to treat them because payments do not cover the costs of providing care. In this case, physicians may be available, but they are unwilling to provide care for the proposed payment. Conversely, patients with commercial insurance don’t seem to have such problems.

Liability also affects access to care. At first glance, it is easy to discount that effect. How could something that amounts to only 1.5% of total healthcare expenditures affect a physician’s willingness to provide care? The answer is that direct liability costs are only a small piece of the puzzle. Fear of liability creates a tremendous ripple effect. No physician wants to be at the receiving end of the next $60 million verdict. Residents in high-risk fields cite malpractice costs as by far the largest reason for leaving one state in favor of another. More than half of hospitals in medical liability crisis states have difficulty recruiting physicians, resulting in less physician coverage for their EDs. A survey of some Nevada Ob/Gyns showed that 60% planned to drop obstetrical coverage due to malpractice premium increases. Similarly, many Mississippi Ob/Gyns have dropped obstetrical care due to malpractice liability, leaving some counties with no obstetrical care at all. Trauma centers in several states have temporarily closed due to malpractice issues.

Texas tort reform shows that liability reduction can increase access to healthcare. Since tort reform was passed in Texas six years ago, the number of applications for physician licenses has increased dramatically. The number of emergency physicians has increased in 76 Texas counties – many of which were considered “underserved” for emergency care before tort reform. The number of malpractice insurers in Texas increased from 4 to more than 30 and insurance premiums dropped more than 40%. One Texas health system was able to spend $100 million extra dollars helping poor patients. That money had previously been held in reserves for legal defense fees and insurance premiums.

Some might try to draw conclusions by comparing metrics on ACEP’s Report Card. Doing so does not take into account multiple other factors affecting each metric. We cannot directly compare better access to higher liability any more than we can directly compare better access to colder climate. After all, states that scored worst in “access to care” were exclusively in the South and West United States – which generally have warmer climates.

Finally, defensive medicine costs our system up to $300 billion each year. Eliminating defensive medicine could provide each one of the 46 million uninsured patients in the US with $6500 in health care. Unfortunately, there is little tolerance for errors or misdiagnosis in medicine. While no lawyer will ever admit an expectation that medical care should be perfect, I still haven’t found a lawyer who will give me an example of a heart attack, a ruptured appendix, or a leaking cerebral aneurysm that it is OK to misdiagnose. Instead, doctors perform one low-yield test after another to “prove” that every haystack really doesn’t have a needle in it.

I respect Max and I respect his opinions. It just seems ironic that some of the strongest supporters of the notion that we can “sue our way to better health care” are those who stand to benefit the most from trying to do so.

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Maxwell S. Kennerly, Esq., is a Philadelphia trial lawyer and author of the blog


  1. Christopher Walton, DO on

    Chuck- you beat me to the punch.

    First of all I would like to tell you how much myself and my wife (non-physician) enjoy your Nightshift column. I was also in the Navy for 10 years and can really appreciate your “sea stories”. Some things never change!!

    I’ve never written a comment before (i.e. first time caller, longtime fan), but after reading this article it seems to me more could have been done on your part as a physician to avoid this outcome.

    I find it difficult to believe you work in an environment where the misguided assessment by a triage nurse can send a patient down a one-way irreversible path to a mandatory evaluation by a psychiatrist. If this the case then why do you need to do any type of psychological evaluation since you cannot override the triage nurse’s documentation. Without even seeing the patient I can imagine how this all happened. The patient told the nurse the same thing she told you “I couldn’t take this much longer”. OK, this sounds like a psych complaint, if she can’t “take this much longer” she MUST be suicidal. Writing “suicidal” takes less time then what was actually stated, off to the psych room!

    I’m quite certain that when this patient left her house and came to the ED that a prolonged stay for being “suicidal” was not on her mind. I suspect she thought by going to the ED she would be able to talk with the on-call psychiatrist, placed on an antidepressant, and now have someone to see for her problems. Not spend the night in the ED, have her blood drawn, and have a sitter placed outside her room.

    It seems to me that you felt hopelessly trapped in a silly hospital policy that was not subject to reasonable-man theory or common sense of any kind. This poor woman’s fate was sealed by a few misguided strokes of a pen. While trying to fix hospital policy at 1AM is rarely successful, I feel you could have been a better patient advocate, and more proactive in your disposition of this patient. I’m not convinced that discharging the patient and providing outpatient followup on well documented chart on a clearly non-suicidal patient equates to a “breach of care”. If anyone was subject to breach of care, wouldn’t it be the nurse who inappropriately wrote “suicidal”? Perhaps a simple phone call to the on-call psychiatrist could have avoided this. As ED docs we all know how “reasonable” our consultants can be when awoken from Stage 4 REM sleep at 3AM! Once again, if you have no say in the disposition of psych patients then what is your role?

    In the end I think a disservice was done to the patient. I’m sure she will have vivid memories of her evaluation and when she really needs acute psychiatric help may not seek our services.

  2. Usually love your articles, was disappointed to see that your nurses are ordering workups against your judgment as a physician.

  3. Dree Daugherty, MD on

    I agree with Dr. Walton (and as a fellow night doc, look forward to reading the “Night Shift” column each month). One solution would be to have the triage nurse redo her note saying “suicidal”. She might be able to chart, “Can’t take this” and also note that the patient denies suicidal ideations. I don’t feel compelled to write orders for blood already drawn. I also have the list of referrals that our social workers use, so with a bit of counseling by me, I sometimes can discharge the patient myself with good documentation and referrals. Also, the social worker may be able to follow up the next day if I save the facesheet with the patient’s name and telephone number.

  4. I thought nurse power over doctors was getting bad here in the UK, but thankfully I would still be in a position to override such ludicrous protocol driven actions on the basis of my, medically qualified, opinion.

  5. Jim Mensching, DO on

    Although I do agree with Dr. Walton (I also helped train him), I can definitely see doing nearly the same thing in the same situation. There seems to be a growing trend among ED nurses (and their managers) that their input be ignored at your peril. Regardless of their experience they’ve been encouraged to question your clinical judgment and hide behind passive-aggressive maneuvers such as “we have to follow policy” and “I’m only advocating for the patient.” I won’t even get into the damaging comments they can make in the chart when things go bad. Combine this with a medical staff that is less hospital-based (most PCPs admit to hospitalists) and a nursing-dominated administration it’s no wonder Dr. Plaster shrugged his shoulders and moved on.

    Woe to the doctor who dares raise the nurse’s ire or – God forbid – raises his or her voice. Soon you are a deemed as “having a problem with the nurses” and on your way to being a “disruptive physician” – a term we logically associate with the profanity-spewing, instrument-throwing jerks we associate with other specialties. See how easy it can be applied to your raised voice or objective criticism of nursing care, policy, etc. Whether you are a hospital employee or a member of a fee-for-service group this can threaten your livelihood. In the end your triumph can be a Pyrrhic victory. Think about all those boxes you check each time you renew your license or your privileges, and then having to explain the “yes” to your medical board or hospital credentials committee.

    Don’t get me wrong – I really do appreciate and respect what our nurses do and how overwhelmed they are. I get along with most of them, and I married one. However in dealing with them and with hospital administrations you have to pick your battles carefully.

  6. Christopher Walton, DO on


    Great to hear from you!

    Agree with your response. Just want to make one thing clear that may not have been apparent from my initial response (rant). I don’t hold the triage nurse accountable for the chain of events that occurred. This to me is an unreasonable following of an in-place protocol that doesn’t allow for any type clinically based input. I didn’t feel that it was doc vs. nurse issue.

  7. I agree, it is up to US and only US as ED physicians to take responsibility and not allow this kind of madness to occur. Most appropriate response would have been to have a discussion with the RN who started an IV, drew blood, and did a foley without an order (assuming no standing orders/protocol is in place). If you get resistance, the next step would be to call the house supervisor or talk to the charge nurse.

    For an RN to “override” your clinical judgment by saying “once it’s on the chart we have to go down this path” is quite frankly, unacceptable.

    Being passive in this process just contributes to the problem.

  8. Mark Plaster MD on

    Ok, I’m a wimp. Beat me. But you’ll have to get in line behind my wife and she plans to be at it for a while. Hey, remember this is fiction. I was just trying to tell a story about how bureaucracy and rules can trump people sometimes. Would you have enjoyed the story more if I had taken the nurse into the back room and beaten her senseless? Uh oh. My wife is coming. I better change that last line.

  9. I sympathize with the good doctor. However, I see a different side to these issues here in rural Illinois. Most of the time, we cannot get anyone to ever come out to see a potential psych patient unless all of those tests and procedures are already on the chart, and absolutely not if even minimal abnormalities are found. More often what I encounter in the rural settings where I work is some county sponsored mental health counselor, through whom all psych admissions in this state must be triaged, decides after her/his eval that the patient does not require further inpatient eval—and they tell the patient and the nurse to discharge with some lame outpatient follow up. My “opinion” is just that—and essentially worthless. I can stop a discharge, and I have; but it is to no avail. The psychiatrists do not even come to the phone for the ED referrals anymore. They speak with the “counselors”, arrange a bed, or deny the admission, and I hear about it later. All of this is sanctioned by the State of Illinois–indeed it is required to use this silly system for anyone on State Aid, State Insurance, or any minor child regardless of insurance. How it is that EMTALA with its requirement for a doctor to doctor conversation,does not apply here is beyond my understanding. Oh yes, that counselor, if they are well educated will be at most a Bachelors Degree education; in this state no license is required if you work for the State itself. HA! So who do you think will be the object of the liability issue when something goes wrong? The only way I have ever found to circumvent and get a patient a bed is by calling on personal contacts/psychiatrists. But I do not always have that option–especially not now that all of this is simply a mandated cookbook process, geared to keep perople out of the system for care rather than bringing them in. The truly mentally ill are not really well cared for in our country, and generally not in our EDs. Even in your original case, the ultimate goal, and everybody knew it, was that the patient would not be admitted. Getting all of the labs, etc… was just part of a protocol so that the psychiatrist would even respond.Even then, he/she wouln’t be arriving for hours. Can you imagine that being allowed of other specialties as a matter or routine and policy?I am not sure anymore who is actually using up all of these beds in the psych units, but they must be people who know how to play the game, and aren’t too mentally ill to make the right plays at the right times. More importantly, they must not be too ill because their doctors don’t do after hours work–and none at all if all the tests aren’t done.

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