Dr. Daniel Ein examines new patients at his Washington Circle office for aches and pains -- and lawsuits.
"I think we're all sniffing out the litigious patient," said internist Ein, who says these days he is careful to explain the risks better.
High in the Sheraton International office tower in Reston, Dr. Louis Pugsley, an obstetrician and president of the Fairfax Medical Society, declares that he goes a step further with patients he thinks are likely to sue: "I recommend that they get their care somewhere else."
Ein and Pugsley are just two of the thousands of physicians who are struggling in the heated, increasingly bitter national battle against soaring medical malpractice insurance rates.
In New York City, where malpractice premiums in the high-risk specialty areas can routinely be $80,000 a year, 5,000 doctors went to Albany in the spring to demonstrate in favor of legislation that would help trim malpractice insurance costs.
In Maryland, where rates for some obstetricians rose by 135 percent this month, a group of angry doctors went to Annapolis to demand extra time to pay and said they would seek legislation limiting malpractice awards, a system already in place in Virginia, where there is a $1 million cap.
Local physicians Ein and Pugsley admit that their screening of new patients for those who might be litigious contradicts the thrust of their medical training, but they believe there's no alternative.
In the Washington area, malpractice premiums are at about the midpoint of the national spectrum. Coverage that costs a neurosurgeon $12,348 in Arkansas and $92,570 in Miami runs $57,065 in the District, up to $47,517 in Maryland and $31,365 in Northern Virginia, according to a major insurance carrier.
The fear is not only of large jury verdicts for injuries and lost earnings, but also, from the physicians' point of view, of wildly inflated awards for intangibles such as pain and suffering and emotional distress. In one often-cited court case, despite the Virginia cap, a Fairfax County lawyer won an $8.3 million jury verdict in January in a malpractice case, by far a record in the state, for a 3-year-old girl who died a month after the trial.
In light of such high malpractice awards, Ein said his medical practice is "not as much fun as it was. My son is thinking about going into medicine, and I have real problems with it."
Orthopedic surgeon Robert E. Collins, president of the Medical Society of D.C., told The Post recently, "We're approaching a crisis here."
Crisis or not, several area health professionals said in interviews that they fear high malpractice insurance rates will result in:
*A reluctance by suburban doctors to maintain offices in the District or to refer cases to D.C. hospitals. "Patients from the suburbs are desperately needed by D.C. hospitals to pay for the cost of care of the needy," said Stephen H. Lipson, head of the D.C. Hospital Association. More than half the nonmilitary patients in D.C. hospitals are suburbanites.
According to Lipson and others, District juries are generally perceived in the medical community as being rougher on doctors than are jurors in outlying jurisdictions.
*A worsening shortage of available health care in low-income areas. Although doctors pay malpractice insurance premiums, the cost usually is passed on to patients. "The low-income patients can't pay it. It isn't right," said Ein, who heads a D.C. Medical Society-D.C. Hospital Association committee studying the problem.
*A tendency by young doctors to take up practices elsewhere or avoid practicing by themselves. Many beginning physicians would have trouble grappling with insurance rates like Pugsley's. He pays $22,000 a year and has been sued "more than once." One insurance carrier in this area, Pennsylvania Casualty, refuses to insure new sole practitioners.
"D.C. is probably considered a very hard place to get started, with professional liability insurance a significant part of that," said Richard Little of the National Capital Reciprocal Insurance Co. "Maryland and Virginia are a little bit better."
*A rising temptation to practice defensive medicine. In Northern Virginia, Pugsley says, many doctors now seek "extra physician consultation. You're much more likely to consult a colleague in your specialty, or even outside your specialty. There's much more of a tendency to get a confirmation of your diagnosis."
Extra laboratory tests also are popular. A study reported in the current Journal of the American Medical Association concludes that unnecessary tests add up to $1 billion in extra costs to the nation's medical bill each year. "Tests and X-rays are utilized to cover every possible disease entity that the patient might have," Pugsley said.
The campaign to pinpoint causes -- or assign blame -- for rapidly rising insurance costs is widespread and angry, blossoming into an outright feud among plaintiffs' lawyers, insurers and doctors.
Trial, the magazine of the American Trial Lawyers Association, recently referred to doctors' malpractice complaints as "the crisis hoax," maintaining that insurance companies change the numbers in the interest of greed.
Trial lawyers, retorts James A. Snyder, a spokesman for the St. Paul Fire and Marine Insurance Co., a major carrier in this area, "are foisting a lot of garbage on the public, and the tragedy is, they know it."
A focus of the debate is the call by physicians and insurance companies for "tort reform" -- changes in the laws governing civil damage claims, preferably by placing a cap on the size of jury awards. Virginia's cap began in 1976 at $750,000 and was recently increased to $1 million. About 25 other states have such a ceiling, and physicians in Maryland and the District say they plan to lobby for similar protection.
Many trial attorneys, while acknowledging their self-interest because they normally receive one-third of the award as a fee, argue that ever-bigger jury verdicts serve justice and impose discipline on a medical profession that has been slow to police itself.
"If you mess up, somebody besides your colleagues and God is going to know about it," said Jack H. Ollender, a D.C. attorney who often represents malpractice plaintiffs.
Some health professionals say the culprit that overshadows the wily attorney is the unreasonable expectations of the patient, heightened by an era of high technology and consumerism, and a general atmosphere of litigiousness.
"We live in a society in which we don't trust institutions very much," said Ein. "That's not necessarily a bad thing, but it introduces a lot of tension. If we believe that every injury should be compensated, let's be honest about it. It might mean some would get less than they deserve, but everybody would get something."