Imagine your neighbor is having car problems and asks you to recommend a repair shop. You do but find out later that something happened to his car while it was in the repair shop and now he must replace his car. He says he wants you to pay for the new car, since you were the one who recommended the repair shop.
Sound ridiculous? It's exactly what Warren Greenberg is suggesting, in a Sept. 1 column on this page, when he proposes that doctors be held liable for the hospitals they recommend. He is suggesting that a patient should have the right to actually sue a doctor for damages that occurred at a hospital his or her doctor recommended.
As Greenberg states in "Put Pressure on Doctors to Choose the Right Hospital," individuals do not walk off the street and into the hospital for major surgery. They are recommended by a physician, and it is important that the physician always keep the patient's interest in mind. But, while it is essential that the physician recommend only what is in the best interest of the patient, holding a doctor liable for hospital referrals is not the solution. Greenberg's suggestion would result in doctors refusing to refer patients to hospitals, higher doctor's fees and more doctors refusing to treat patients at all.
The medical community is already suffering from a severe liability crisis. Across the country, rising costs and the fear of lawsuits have created a medical care liability crisis that is forcing doctors to refuse to treat patients and hospitals to close their doors. In Florida more than 1,000 medical specialists fearing lawsuits have refused to work in emergency rooms, and half of Nevada's rural family physicians no longer deliver babies because of the liability risk.
Greenberg suggests that holding a physician liable for the hospital he or she recommends will encourage them to send patients to a quality hospital. It is much more likely that combined with laws already in place under our civil justice system, the new ruling would only encourage doctors to refuse to recommend hospitals to patients at all. For example, consider how a doctor would be affected under joint and several liability laws, or the "deep pocket" ruling. Under that law, a person found to be only 1 percent liable in an accident can still be forced to pay for 100 percent of the damages if they are the only solvent party. Hospitals usually suffer from this law. Although they are only found to be marginally at fault, as the "deep pocket" they are often forced to pay for all the damages.
Combined with Greenberg's suggestion, this already unfair law takes on a new twist. Under such a law, a doctor who is not connected with a malpractice suit in any respect at all, with the exception of recommending the hospital, could actually be sued and held liable for all (100 percent) of the damages in any malpractice case, no matter who was actually at fault.
Such a ruling would also have an enormous impact on the insurance industry. Insurance companies are already faced with an increasing number of lawsuits and escalating damage awards and have been forced to raise premiums to the point that many doctors simply cannot afford the new rates. For example, in Chicago and East St. Louis, malpractice insurance premiums for obstetricians are $174,799 per year. For neurosurgeons, the premiums average $221,307 per year. Worse, many doctors can no longer find insurance at any price. In Virginia, the St. Paul Insurance Co., which insures about 4,000 doctors, has refused to write any new policies in the state, and in Florida, the Cigna Insurance Co. withdrew on July 1, dropping 2,500 doctors. Adding the twist of holding doctors liable for the hospital they recommend could be the final blow to already soaring insurance premiums and the availability of insurance.
Of course, we all ultimately pay the price as doctors with skyrocketing premiums pass along the increases to us, the consumers. Consider that the amount each patient pays just to cover liability costs in Michigan hospitals has risen from $40 to $164 since 1981.
Greenberg's suggestion is one more example of the "sue" mentality that has taken hold of our country -- a mentality where lawsuits are the order of the day. We have come to regard our legal system as a social welfare system, where too many people expect to receive compensation for injuries traditionally considered accidents, no matter how much their own actions contribute to the problem.
What the medical community needs is a reform of the civil justice laws that are already in place, rather than adding new interpretations on liability -- we need tort reform and a return to a fair, balanced and predictable legal system.
We need to revise laws such as joint and several liability and place limitations on liability exposure awards and attorney's contingency fees. In addition, we need to end the collateral sources rule, which allows a plaintiff to collect twice for damages.
Such changes will help not only the medical community but also businesses and professionals in every sector of the economy who are suffering from the liability crisis. Tort reform will return fairness, balance and predictability to our legal system, which would be in the best interest of us all.
James K. Coyne is president of the American Tort Reform Association, 1250 Connecticut Ave. NW, Suite 700, Washington, D.C. 20036. Second Opinion is a forum for points of view on health policy issues.