Medical Malpractice and the Maternity Crisis Is there a Connection?

Transcription

1 Medical Malpractice and the Maternity Crisis Is there a Connection? July Hamilton Street, Suite 205 Philadelphia, PA

2 Medical Malpractice and the Maternity Crisis Is there a Connection? MCC began this project to understand how or if the increased cost of malpractice insurance was contributing to the rising cost of maternity care and to the closure of hospital maternity services. Liability insurance has been cited as one of the main cost drivers in obstetric/maternity care, and there has been an assumption that if malpractice lawsuits and awards were reduced the maternity crisis would be fixed. The truth about the connection between malpractice and the maternity crisis is far more complex and markedly different when viewed from the perspective of the families who seek/desire maternity services. This briefing paper on malpractice insurance and obstetrics will do the following: 1) Review the purpose of the malpractice system and some history of medical malpractice 2) Review recent efforts to solve the malpractice crisis in PA 3) Describe the efforts of two states, Florida and Virginia, who have implemented an alternative compensation method designed to address problems in the malpractice system Medical malpractice stands as one of the most emotional issues in the healthcare arena. Almost any discussion of the issue among doctors and lawyers degenerates into a variation of the following positions: Doctors: Tort lawyers are greedy and have ruined the practice of medicine by forcing us to practice defensively and by filing frivolous lawsuits. Lawyers: Doctors have not been careful or safety-conscious, and there are many injured patients who need the help of the legal system to compensate for poor care received. This basic disagreement is compounded by dramatic differences in interpretation of data on the effect of some legal reforms on malpractice insurance premiums. Stakeholders also disagree in interpreting how the cost of malpractice insurance affects access to care. Major proposals for overhaul of the system have not gained broad backing, and thus remain in the realm of foundation and academic studies. An inability to agree on the facts has led to an inability to agree on solutions. The impasse in Pennsylvania includes some of the follow characteristics: Physicians believe that malpractice insurance rates are too high, and that, particularly in Pennsylvania, this has led to an increase in physicians leaving the state. Although the Pennsylvania Medical Society generalizes this to all physicians, obstetricians and gynecologists believe they have been hit hardest. The physicians suggestion is usually tort reform, i.e. capping non-economic damage awards. Despite some changes in recent years, the Pennsylvania Medical Society continues to push for award-caps as the solution. Malpractice crises occur periodically because of shifts in the fortunes of the insurance industry. During previous malpractice crises, physicians were more easily able to compensate for increased malpractice insurance costs by raising their fees or seeing more patients. In recent years this has become more difficult because health insurers have exerted 2

3 tighter control on their payments to physicians. Yet several studies show that most physicians have not seen a decrease in their income because of higher malpractice insurance costs. Physicians (and the hospital systems that own physician groups) like other professionals and business owners are subject to rising operating costs. Outlays for rent, employee health insurance, information technology, and supplies continue to increase. One study claimed these expenses grew at a greater rate than the cost of malpractice coverage. But the high price of malpractice insurance is a more emotional issue, and is often singled out for blame. Physicians claim that malpractice threats cause them to practice defensive medicine, and thus drive up costs. This point is consistently raised in policy debates about malpractice. However, numerous studies have failed to agree on the magnitude of such costs, and whether they are significant. The effects of changes initiated by Governor Rendell and the PA Office of Health Care Reform have yet to be fully studied. The difficulty of achieving significant change can be appreciated when one looks at a five-year Robert Wood Johnson funded initiative on Improving Malpractice Prevention and Compensation Systems. The RWJ objectives to develop a new generation of mechanisms to prevent and compensate for medical malpractice were unmet. When the project began in 1992, the Foundation thought that the malpractice problem was already well documented, and that the knowledge existed to develop effective solutions. Yet after the five years of funding, RWJ concluded, grimly: Improving Malpractice Prevention and Compensation Systems produced solid research by respected scholars that may benefit policymakers and researchers when the next malpractice crisis or other development sparks a deeper interest in reform. MALPRACTICE: HISTORICAL PERSPECTIVE AND BACKGROUND The malpractice system has three social goals: to deter unsafe practices, to compensate persons injured through negligence, and to exact corrective justice. In theory, it is an efficient system. The courts are available to provide compensation and deterrence when self-regulation fails to prevent a breach of accepted standards of care. Because plaintiffs attorneys work on contingency, they can be effective gatekeepers by refusing to take claims that are unlikely to win. Liability coverage helps ensure that providers are not bankrupted by a single large payout and offers resources to compensate patients. However, what is true in theory is not true in practice. Starting in the 1970s, the US has experienced several rounds of malpractice crises. Public recognition of malpractice issues increased as case law changes made it easier for plaintiffs to bring suit. Judges began to apply national, rather than local, standards of care. Hospitals lost charitable immunity. As insurers left the market, many physicians couldn t obtain insurance. States responded with reform measures: insurance reform, joint underwriting associations to act as insurers of last resort, patient compensation funds to absolve insurers of some responsibility, and public reinsurance mechanisms to fill in gaps in the insurance market. These efforts offered some temporary relief. 3

4 In the 1980 s there was a rise in both malpractice claims and other personal injury litigation. Premiums rose and states looked again at tort reform. Some states instituted caps on noneconomic and punitive damages. At the same time, these changes led to changes in the insurance industry. Medical malpractice, previously dominated by large property and casualty insurers, now became dominated by institutional self-insurance or by small companies owned by physicians and specializing only in medical malpractice. In the 1990 s, payouts rose slowly, but claims did not grow. Defendants won a majority of cases. Insurers had raised premiums high enough to cover anticipated payouts, and so began making money on malpractice coverage. New insurers entered what they saw as a lucrative line of business, and competition with real premium differences became part of the marketplace. The malpractice crisis of the past decade has been considered to be multi-factorial: insurers again leaving the market, the cost of insurance rising, dramatically increased payouts to plaintiffs since 1999, and a small increase in cases. A downturn in the economy led to diminished investment returns for insurance companies. Some analysts also believe that insurance companies made bad business decisions in the 1990 s, pricing premiums too low as they sought to enter the market and increase their market share. The recent increase in claim frequency and payout size is believed to result from greater public awareness of medical errors, greater public distrust of, and less confidence in, the medical system, anger at managed care, and advances in medical innovation and technology that raise expectations about medical outcomes. In addition, plaintiff attorneys have become more reluctant to accept settlement offers that might have closed cases in the past. These days many jurors share a distrust of the medical system. With greater public awareness of errors, juries in general view plaintiffs and larger awards more favorably. Today s malpractice situation has one other distinctive difference from previous eras. Until recently, healthcare providers have been able to pass on increased costs of malpractice coverage. However, increasingly tight contractual agreements between health insurers and hospitals and doctors, combined with other increased costs of running medical practices, make it difficult for physicians to raise fees. So the impact of higher malpractice insurance costs is greater. ~~~ It s not only the insurance market that prevents the medical malpractice system from reaching its goals. The system does little to improve patient safety, either by deterrence or any other means. Two studies one in California in the mid-1970s, and one done by Harvard in the mid-1980s both showed the same thing: the actual number of medical injuries and adverse events occurring in hospitals was much greater than the number of malpractice cases. There was almost a complete disconnect between injury and litigation. (Only two percent of negligent injuries resulted in claims, and only 17 percent of claims appeared to involve a negligent injury.) These numbers were repeated in several different areas of the country and confirmed. Other studies showed that the system does a fairly good job of compensating some plaintiffs with meritorious claims, but 4

5 that the compensation is inconsistent, and awards have more to do with disability than with negligence on the part of the healthcare provider. Thus it seems that the current medical malpractice system does not work very well at compensating for the actual effects of negligence. It is both an inaccurate mechanism for distributing compensation since most injured parties do not get compensated and an inefficient one, since up to 60% of the premiums paid end up going to lawyers. (This is twice the overhead rate for the average worker s compensation claim.) It has been very difficult to study whether the system does anything at all to reduce medical negligence, and there is insufficient data to say that it does. There is conflicting data regarding the effect of malpractice cases and defensive medicine, with the field of obstetrics producing the most thorough research. Some well-designed studies have shown that a higher liability risk (as measured by high malpractice premiums, past claims, and perceived risk of being sued) increased the probability of delivery by cesarean section, others have shown the opposite, and still others have shown no association. In addition, no reliable data has shown that large numbers of physicians have left the state. Although consumers have subjectively reported difficulty in finding obstetricians in Pennsylvania, the best studies have not demonstrated a significant departure of obstetricians during the most recent malpractice crisis. [M Mello, Health Affairs 2007 vol. 26(3)] Mello showed that although a slightly larger number of obstetricians either left the state, or stopped practicing obstetrics, during the crisis period than before the crisis period, the number was small and not significant. Despite this, the public believed that physicians were leaving. In 2004, an IssuesPA/Pew Poll found that 25% of Pennsylvanians believed they had to choose a new family doctor because of rising malpractice insurance costs. THE MALPRACTICE CRISIS IN PA: RECENT APPROACHES In 2002, the Pennsylvania legislature passed Act 13, which Established a Patient Safety Authority Required all health care institutions to o Have a patient safety plan and a patient safety committee o Report all serious errors to PA Department of Health and Patient Safety Authority o Notify patients in writing of serious patient safety events. Created the MCare (Medical Care Availability and Reduction of Error) Fund Money in the MCare Fund is used to pay injured persons for claims in excess of that available through a physician or other provider s primary malpractice insurance. Most healthcare providers are required to buy $1 million in malpractice coverage the first $500,000 from the private market and the remaining $500,000 from the MCare Fund. MCare paid a portion of premiums for the highest cost specialties. 5

6 Since 2003 the PA Office of Health Care Reform (OHCR) has developed a number of proposals. Its initial plan addressed the following areas: 1) Patient safety 2) Medical Malpractice Insurance Abatement 3) Provider Reimbursement 4) Tort reform 5) Insurance It included immediate concrete help to physicians in the form of increased reimbursement under Medicaid, abatement of malpractice premiums for high risk specialties, and longer range proposals for change. The plan is available on the OHCR website. The PA legislature also passed HB 44 in 2003 that gave high risk physicians-obstetricians, neurosurgeons, orthopedic surgeons, and midwives a 100% abatement on the their 2003 and 2004 MCare assessments. In January, 2004 the Pennsylvania Supreme Court responded to requests of the Rendell administration and said that a healthcare provider can only be sued in the county where the alleged negligence occurred, and that in any lawsuit claiming professional negligence, the plaintiff must have a written statement from a qualified expert that "... there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable, professional standards and that such conduct was a cause in bringing about the harm... ". In November 2006, the MCare Commission issued a final report and recommended: Continuing the state s MCare abatement program which subsidizes healthcare providers catastrophic malpractice claims payments until the state decides to phase out this coverage. (The report noted that the Commonwealth had already defrayed nearly $1 billion of malpractice expenses for Pennsylvania healthcare providers.) Privatizing MCare malpractice coverage as directed under Act 13 as soon as is feasible, ideally between 2008 and (Note: in July 2006 the Insurance Commissioner had declined to increase the amount of coverage that could be purchased in the private market to $750,000 and to decrease the MCare portion to $250,000. He did not think there was enough capacity in the private insurance market to support that change.) Eliminating the MCare assessments paid by healthcare providers to support the MCare Fund once private insurers begin covering the entire amount of required malpractice insurance, thereby reducing providers costs. Using the public funds committed to the MCare abatement program to retire the unfunded liabilities of the MCare Fund, once the MCare program ends. Using any remaining committed public funds to mitigate increases in providers malpractice insurance costs, with a target of limiting the maximum increase in aggregate medical malpractice liability insurance costs in PA to 10 percent annually. Aggressively promoting healthcare quality initiatives, which will, among other things, reduce future malpractice expenses and maximize public funds that can be dedicated to healthcare services. 6

7 In October of 2007 Governor Rendell announced that the malpractice crisis had passed. According to the Governor s office: MCare payouts had declined for 3 years in a row. The state's two largest private medical-malpractice insurers, PMSLIC and MedPro, had kept their premiums steady for two years and then filed for rate decreases. (In 2009, the base rate is flat.) New insurance companies had begun to write medical malpractice policies. (There are over 58 insurance entities in 2009 that have been licensed to offer med mal coverage in PA. The number of practicing physicians in the state had remained constant. There was a 38% drop in malpractice cases filed between 2003 and See %20to% pdf the state court website. Filings in Philadelphia in 2006 were down 50% from the average. Filings were also down in Chester, Bucks, and Delaware Counties, but were up 338% in Montgomery County. Some analysts have suggested that, in the past, those additional cases may have been filed in Philadelphia. MCare announced its 2007 annual assessment to physicians: 20% of the prevailing primary premium, which is based on the cost of coverage with the Joint Underwriting Association, an insurer of last resort. In 2006, it had been 24%. In 2009, it is 19%. 1 Unfortunately, Governor Rendell s announcement that the crisis is over did not mean that the fundamental issues raised by the medical malpractice system, and its critics, or even by his administration, had been solved. However, several reforms have represented progress. Currently in Pennsylvania, suits must be filed within two years of the injury. Although Pennsylvania does not have caps on non-economic damages, the reforms instituted periodic payouts, and deducted payments for lost earnings or past medical expenses that were paid from other sources. They also required that, in considering motions to reduce the award, a judge take into account the affect of the award on access to healthcare in that community. Yet many advocates have urged another approach, moving beyond reforming the legal system where malpractice cases are tried. Instead of discussing tort reform, they propose much needed system reform. An important aspect of this alternative approach is that it begins to unify medical errors with a system to improve patient safety. The traditional malpractice system operates on premises that are in conflict with those of the modern patient safety movement. A 2004 review about malpractice in the New England Journal of Medicine describes it as a conflict of cultures and stresses the need for a third way. 1 With a few exceptions, any provider who spends 50% or more of practice time in PA must participate in MCare. Participation means paying a certain percentage of the prevailing primary premium charged by the Pennsylvania Professional Joint Liability Underwriting Association for their specialty in the previous year. MCare has instituted experience rating, based on the number of claims that MCare has paid out in the last 5 years. 7

8 The authors point out that trial attorneys believe the threat of litigation makes doctors practice more safely. But the punitive, individualistic, adversarial approach of tort law is antithetical to the non-punitive, systems-oriented, cooperative strategies promoted by leaders of the patient-safety movement. The review goes on to describe one alternative to litigation that is attracting much interest: an early-offer program in which the patients and the healthcare organization have incentives to negotiate a private settlement immediately after an adverse event occurs. Other proposals would route malpractice claims through structured mediation, administrative law hearings, or medical courts. Several scholars have also paired alternative mechanisms for resolving disputes with an emphasis on private contracts, allowing patients to agree in advance with their providers or health plans to submit to specified procedures, such as arbitration, in the event of an injury. - R93 In Pennsylvania, Governor Rendell s original proposal included some of these ideas as did the Prescription for Pennsylvania linking accessibility, affordability, and quality. The Office of Health Care Reform, in cooperation with medical societies, held a forum for hospital CEOs and general counsels to explain a successful model at Rush Medical Center in Chicago. Drexel adopted that program in 2004 for some of its cases, and Abington had a pilot project sponsored by PEW. Other hospitals across the state use mediation in a small number of cases. The Pennsylvania Supreme Court encouraged the MCare system to try mediation, and this is occurring in some cases. While the Pennsylvania Medical Society has not opposed mediation, it does not see it as a costcontainment measure. For that purpose, the Pennsylvania Medical Society continues to argue for caps on non-economic damages. However, there is no public vocal movement in PA for fundamental system overhaul of the malpractice and professional liability procedures. The patient safety initiatives are critical, but their impact on malpractice premiums and payouts, in the current environment, is uncertain and will most likely be a long time coming. In the meantime, can we learn from what other states have done to address the malpractice issue, aside from tort reform? The next section highlights efforts in Virginia and Florida to implement small programs to cover a high cost malpractice area babies with neurologic injury. Their approach dispenses with negligence as the basis for compensation. Although often called nofault, it really replaces negligence with the concept of avoidability, a concept used more commonly in other countries. The standard for an award is that a patient sustained an avoidable injury. Where plans like this are in place, a medically injured patient does not have to file a lawsuit and prove fault in order to be compensated. ADDRESSING BIRTH INJURIES IN FLORIDA AND VIRGINIA Background Malpractice has been a particular issue for obstetricians because they are frequently defendants when children are born with neurological impairment. In an article in JAMA in 2005, the authors stated that it has never been safer to have a baby in the United States and more dangerous to be an obstetrician. [MacLennan] 8

9 According to this article: 76% of practicing United States obstetricians report facing litigation at some time during their careers. The median award for medical negligence in childbirth is $2.3 million. Most of these awards are for allegedly causing cerebral palsy (CP); 60% of malpractice premiums go to CP suits. Fewer than 10% of CP children receive any compensation, and 60% of the premiums expended on these cases go toward legal fees. 86% of cases are settled out of court, half with payment. There is no medical evidence that lack of oxygen at delivery causes cerebral palsy. The cause of cerebral palsy is essentially unknown. Several intra-partum risk factors have been identified as possibilities, but none of them are preventable with current knowledge of prenatal care or labor and delivery monitoring and choices. However, birth injury suits are common. According to the Physicians Insurers Association, brain injuries to children are the most prevalent and expensive conditions reported. Average payments are all >$500,000 and large judgments are awarded when there is severe disability without regard to cause. Creative Compensation Efforts In the 1980 s, Virginia and Florida created birth injury compensation funds in response to increasing costs of medical malpractice insurance, and the withdrawal from the market of insurers. These funds, each known as NICA (neurological injury compensation association), were designed as no-fault systems for a very narrow range of injury. In a joint presentation by the current directors of both programs, the programs were described as supported by the medical community and tolerated by the legal community. Similarities of both plans: They were designed to compensate families for lifetime medical expenses they incur when a child is born severely impaired because of neurological injuries suffered during the birthing process. Funds are capitalized by annual assessments from providers and hospitals. Physicians and midwives who participate pay $5000 per year in Virginia and $5200 per year in Florida. Hospitals pay a mandatory $50 per live birth. Participation by doctors and hospitals is voluntary in Virginia; hospitals must participate in Florida. Doctors and hospitals that participate do not have to face malpractice suits if an infant is found eligible for compensation. Eligibility is determined by the Workers Compensation Commission in Virginia and by an Administrative Law Judge in Florida. All non-participating physicians pay $250 per year in Florida and $270 per year in Virginia. In Virginia, liability insurers pay ¼ of 1% of premiums. Families receive payment for all necessary and reasonable expenses for medical, hospital, rehabilitative, residential, and custodial care and services; plus special equipment or facilities, and related travel, except those expenses already paid by a private insurance policy or a government program. The family is also compensated for the cost of filing the claim, including attorney s fees. 9

10 In Florida, parents receive an award up to $100,000. In Virginia, the family is compensated for the child s projected lost earnings from 18 to 65, calculated at 50% of average weekly wage of private sector non farm workers. How are these programs working? The programs goals are to lower malpractice premiums for obstetricians and to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries. The plans have been evaluated by mandated state legislative reports and in legal and medical journals. Academic research has shown mixed results: A 1998 study [Sloan, Whetten Goldstein] found that obstetricians liked system better than the tort system but didn t like the premiums. At that time the authors concluded that the program hadn t built a constituency and therefore had a minor impact on practice patterns. In both states, the annual assessment was more than offset by reductions in premiums for malpractice insurance. Other studies showed that in FL and VA malpractice premiums dropped relative to the rest of the county. The programs efficiently and equitably achieve the goal of distributing compensation to claimants for a limited class of catastrophic injuries. Cases are resolved in less time and at lower cost, BUT they have compensated fewer claimants than expected. One study [Studdert, Fritz, and Brennan June 2000] found that as many severe injuries continued to get malpractice payments as via NICA. However, some specific benefits have been noted: In both states, compared to the tort system, more money is spent on the care of the child. In Florida <1% goes to attorneys, and in Virginia <4%, compared to 40% in tort cases. Most cases are decided within six months, much more quickly than under tort. Participants consider staff members at both programs to be friendly and helpful. Many families who needed help quickly appreciated the program s rapid response. Recipients receive transportation, housing assistance, medical costs after private insurance has paid, and nursing care in the home. Criticisms of the programs emerge from differing views of the malpractice system and the various approaches to reform. Observers may believe the programs should improve patient safety, decrease malpractice premiums and claims, fairly compensate injured parties, or all of the above. Additional findings: The programs only help a very limited number of children. By intent, the definition of who is eligible is very narrow. Virginia looked at broadening eligibility, but noted that would increase the costs for a program already actuarially unsound. Both lawyers and obstetricians agree that the limitations on eligibility do not serve the needs of many neurologically impaired children who will need a lifetime of care. One estimate stated that 90% of babies born with neurological deficits do not qualify under the definitions of these programs. There were no reports on the effects of the programs on patient safety, although participating hospitals in Virginia must agree to have their records reviewed by the Health Department. 10

11 In Virginia, the program achieved its immediate goal when insurers again began to offer new ob-gyn policies. Liability rates there for ob-gyns are lower than in other states. But insurers still did not provide obstetric malpractice coverage in all areas of the state, and a plan requiring care for the poor never went into effect. Although tort awards were higher than program awards, a greater proportion of the money went to claimants. A study published in an obstetrics journal, done early in the program, found that the number of tort claims fell. But the number of tort + NICA claims combined meant that total claims rose. An assessment by the Robert Wood Johnson foundation agreed with most of the problems noted above, and felt that overall the programs were too small to allow projections regarding other possible no-fault programs. Everyone agrees that there have been far fewer claims than would be expected. A review of the Florida program suggested two hypotheses: People were afraid to file themselves and attorneys didn t want the cases because the money was limited The definition of injury is too limited. Physicians, lawyers, risk managers, legislators, and insurers who were interviewed all agreed on that. In the larger area of malpractice and insurance reform, these programs can t spread risk because they apply to only one injury. No one can predict this risk since the cause of the injuries is unknown. Some physicians have noted that although this approach is considered no-fault, the hospitals and physicians, from their fees, are being asked to fund the program. One physician, on a healthcare blog, stated that this is a societal burden that should be shared by everyone, although he does not suggest how, and does not suggest universal health insurance. William Sage, a principal investigator of the Pew Project on Medical Liability in Pennsylvania, noted that the current financial burden falls mainly on physicians in a few high risk specialties. Current practice, he says, makes no more sense than asking airline pilots to guarantee safety for the entire aviation industry and forcing those who fly the most dangerous routes to compensate injured passengers from their personal paychecks. CONCLUSION The current medical malpractice system fails to meet its goals of improving patient safety and fairly compensating injured victims. Over the past 30 years, the system has reached a crisis that is most attributable to the fortunes of the insurance industry. In the past, doctors and hospitals were able to meet the costs of these crises, but recent trends in tighter contractual management of doctor and hospital fees have limited that option. Obstetricians are particularly hard hit by these crises. In addition, Pennsylvania is an outlier state. It has more cases, and higher payouts, than any other state. Data on the effects of various tort reforms is contradictory, but a recent article suggests that no tort reforms have had dramatic 11

12 effects on malpractice claims. There simply is no good study that explains why Pennsylvania is such an outlier. The VA and FL no-fault systems have helped a limited number of families. Experience with them has shown the benefits of trying to develop a no-fault system. Major issues around no-fault for neurologically impaired children include: 1) who should finance the system; 2) how do you define the class of children eligible for benefits; and 3) how do you define necessary benefits. The fourth issue is whether any other legislature would even create such a program. Larger challenges remain. Differences in philosophy regarding the role of malpractice insurance, and its relationship with larger health care reform, must be resolved. The report on malpractice issued by the PA Office of Health Care Reform in 2003 addresses both tort and patient safety aspects, and Pennsylvania has made small steps in this direction. PA has some of the strongest state-wide patient safety initiatives. The Commonwealth mandates prompt disclosure to patients of unexpected problems and supposedly protects physicians from having those discussions used against them in court. However, physicians are still fearful that disclosure will increase lawsuits. Although many advocates state that disclosure reduces litigation risk, there is no proof of this. To a concerned doctor it seems highly unlikely, given the rewards available to patient and lawyer. ~~~ MCC s exploration of the issues has found no clear direct line link between the malpractice crisis and the loss of maternity services. National or state-wide guaranteed health insurance, with clear coverage guidelines for the care of neurologically impaired children, would remove one major reason for lawsuits the need to care for such a child over a lifetime. There is no evidence that caring for low-income women, or immigrants those currently uninsured results in more lawsuits. MCC believes that there are significant contributions to be made by the stakeholders who have been largely left out of the debate the medical consumers. Instead the debate has been dominated by hospitals, physicians and lawyers. While it is difficult to compete with professional voices, the consumer s interests must be considered when malpractice and liability issues are considered. Public voices could articulate a vision based on the consumer perspective that could identify approaches to fairly compensate injured parties, other than tort reform. Today we continue to grapple with the vast gap between public opinion and reality apparent in this quote from the Pennsylvania Economy League in September 2004: The skyrocketing cost of medical liability insurance is making headlines in Pennsylvania and nationally. Though research shows medical malpractice is not a primary driver of health care costs, and there is no clear evidence that substantial numbers of doctors are fleeing the state because of rising medical malpractice [insurance] rates, Pennsylvanians said they feel the impact of the medical malpractice crisis in the form of rising health care costs and difficulties with access to health care providers. [ 12

13 It is unlikely that new solutions will be put forth and tested until we move beyond the most visible and vocal movers and shakers in the malpractice/maternity crisis - the hospitals, physicians, and lawyers and embrace a problem solving process that includes the families most impacted our consumers. Postscript: The needs of women and their families to have access to health insurance and care have been linked by recent legislative actions to physicians call for liability relief. In March 2008 the House passed legislation that included both a ten year plan to pay medical professionals and hospitals subsidies for malpractice insurance premiums (MCare) and to expand the purchase of health insurance for individuals earning up to 200% below federal poverty level. The Senate did not vote on this piece of legislation and introduced a different plan. When the Senate leaders, House leaders, and the Governor could not find agreement on extending health care access, neither issue passed and the MCare abatement program was not extended beyond Again during the current legislative session ( ), the funding of the MCare fund to support the liability costs for the medical professionals became tied with the funding to expand the health insurance for individuals. And, as of June 2009, unfortunately, there is no expansion for the program to provide subsidized health insurance for individuals and no MCare abatement for physicians. Today, the hospitals and physicians are not supporting legislation to expand coverage for the uninsured individual since they have not been successful in their proposals to finance the MCare fund. Sadly, the link between public funding for professional liability and expanding health coverage for individuals has polarized the two groups of stakeholders who need to be working together. Maternity Care Coalition once again extends its appreciation to Gene Bishop, MD for her research and to Lynne Jacobs for her editing skills. We also wish to acknowledge the contribution of Gabrielle Ritaccio, summer intern, for her proofing and layout skills. 13