The Final Straw

By James G. Marx
  • Monday, January 27, 2003

A family kneels weeping by the lifeless body of their newborn child on the side of the road to St. George, Utah.

Another family prays at University Medical Center in Las Vegas, waiting to hear of the fate their small son. “Beaned” at his little league game, he’s been taken by helicopter to Los Angeles for decompression of a blood clot on the brain.

The year is not 1960 but 2004. These scenarios are not possible but probable—unless, when our Legislature convenes next month, it produces a genuine malpractice insurance solution for Nevada.

Why hasn’t Assembly Bill 1—the emergency legislation enacted last year—produced any relief for Nevada’s doctors? The purpose of AB-1 was to create a stable malpractice insurance market in Nevada—insurance-speak for a marketplace where insurance companies can make a profit. But for doctors there’s been no relief in malpractice premiums.

And why haven’t more doctors simply left the state? Quite simply, when most major insurance carriers left, doctors had to purchase exit or “tail” coverage for all of their previous medical practice. Though the price was high—most have had to finance this—the “good” news was that the pricing for their new policies was initially discounted, since the risks assumed are all in the future.

Of course, in each subsequent year the amount of premium goes up by about 20 per cent. That means that after five years, a fully mature premium is charged. So most doctors, temporarily, are now paying about what they were charged two years ago. Nevada’s looming disaster will really arrive next year and the year after that, when most doctors’ current premium will be about as high as last year’s.

That will be the final straw for most physicians. Most will choose to not pay more than last year’s premium, and so, at that time —if they hadn’t previously—they will make the decision to leave.

Since the “high-risk” specialists will be most affected, they most probably will leave first. We’ve seen that already with the obstetricians. Next will come the exodus of general and orthopedic surgeons who have only modest-sized practices and thus can’t afford six-digit insurance premiums.

Though some especially well-compensated doctors will be able to come up with the premium without major hardship, many of them will still leave. The reason is that physicians, more than the general public, realize how much the safety and security of their families depend upon a strong medical community. Most physicians can suture their families’ lacerations and deliver their own children, but they would rather not. When their children are participating in sports, or their wives—some of whom will be high-risk mothers—are delivering, these doctors will want to be where they are comfortable with the available medical resources.

The trial lawyers would have you believe that America’s problem is greedy insurance companies and bad doctors. While it’s true the insurance industry did have some good years in the 1990s, the past three years were not good for Nevada’s previous malpractice insurance companies—even before the 9-11 losses. For the years 1999 through 2001 the total of all closed claims cost the Nevada companies almost $120 million—including about $16 million for defense of claims. Yet that figure doesn’t include on-going lawsuits still pending from those and previous years.

And about those “bad” doctors: Forty percent of doctors who practice in the Silver State for 10 years or more have been named in at least one malpractice lawsuit. Are four out of 10 Nevada doctors “bad”? While there have been notable exceptions where only one individual spawned 15 lawsuits, the more basic fact is that virtually all medical care involves some statistical level of risk which cannot, finally, be entirely avoided. We need our Medical Board—and not juries—monitoring and recognizing substandard medical care.

Unfortunately, it looks like the only event that will really initiate the process of reform in Nevada will be the realization by attorneys that even they and their families will need rapid access to urgent medical care. No court can order a child back to life or bleeding to stop.

The real issue facing our legislators is whether they want to continue a “target-rich” environment for malpractice attorneys and thus drive physicians out of southern Nevada or create a thriving and expanding medical community that is able to deliver high quality medical care.

James G. Marx, a Las Vegas physician specializing in pain medicine, is a policy fellow of the Nevada Policy Research Instituted.

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