Growing ED liability crisis is spotlighted in survey

The liability insurance crisis may impact more than just individual physicians — it could force some hospitals to limit or shut down emergency services, says Michael Carius, MD, FACEP, current president of the Dallas-based American College of Emergency Physicians (ACEP) and chairman of the department of emergency medicine at Norwalk (CT) Hospital. A new ACEP survey says that ED physicians in 20 out of 30 states surveyed report that liability insurance has become unaffordable or unobtainable in their states.

Carius points to the HEALTH Act (HR-4600) that recently was passed in the U.S. House of Representatives as a possible solution. The bill would reduce medical liability costs by putting a $250,000 cap on noneconomic damages; ensuring that each party to a lawsuit is liable only for its share of damages; allowing periodic payments; and limiting contingency fees. (For updated information on the legislation, go to http://thomas.loc.gov and search for "HR4600.")

As federal legislation, the law would affect only cases in the federal court system, but Carius adds that it would establish the standard for states. "Anything that sets limits for liability will have the long-term effect of lowering rates for liability insurance, as the awards would be likely to decrease," he says.

If this becomes the standard adopted by states, physicians will be encouraged to see increased numbers of patients and more high-risk patients, Carius says. "So ultimately, they will be less likely to end up in the ED," he explains. Another positive outcome would be more affordable liability insurance for ED physicians, he adds.

Here are the current implications of the liability crisis for ED managers:

• There will be more patients in EDs. "As more primary care and specialty care physicians limit their practices, more and more patients will be disenfranchised, meaning that they will end up on our doorsteps," Carius explains. He recommends planning for more patients and more overcrowding. "Ensure adequacy of nursing and ancillary staffs to assist in any ED physician staffing shortfall," he advises.

• ED physicians may practice more "defensive" medicine. "This is as a result of either going bare’ with no insurance or fear of being sued," Carius says. He predicts that as a result, administrators will be paying closer attention to risk-management issues.

There will be increased costs to payers and patients as a result, says Larry Vickman, MD, MHA, FACEP, FACPE, president of the Tampa, FL-based Vickman Group, a health care consulting group specializing in risk-reduction and well-being issues. He refers to ordering additional studies that might otherwise be put off until later, as a result of the practice of "defensive" medicine. Vickman expects there will be more complex work-ups for patients, which increases the time and cost of the ED visit. He says this will result in increasing complexity of the medical record, with more time required to complete it. "In addition to memorializing what went on between the physician and patient, the record will have to become a document that is a defense tool in the event of litigation," he explains.

Vickman recommends the following to reduce risks:

— Education for the staff and physicians. "There are many factors that increase risk, and some that decrease risk," Vickman says. "These must be taught and monitored." (For more on this topic, see "Hot risk management tips: What you need to know," ED Management, September 1999, p. 106.) Give staff conflict resolution training, he recommends. "This will further add to the arsenal of tools that are of value in keeping the risk of litigation to a minimum," he says.

— Good communication to patients who are waiting. "Ample use of well-trained and mature volunteers can be a blessing in this regard," Vickman says.

• The shortage of on-call physicians will become worse. Carius points to existing shortages of on-call specialists in EDs nationwide, and he warns that the physician liability insurance crisis will reduce further the limited pool of specialists across the country.

• ED physicians may stop practicing. Vickman says that fewer physicians will stay in practice, as the costs of liability insurance continue to increase. "In the case of an organization that contracts with a group of physicians, some of that cost might be borne by the contracting agency," he suggests.

• There will be increased stress for physicians and staff. Stress over liability insurance is in addition to the pressures ED physicians already are facing from increased volumes and decreased resources, Vickman says. "This will lead to diminished levels of satisfaction, earlier burnout, personal distress, and fewer physicians who are willing to practice under such circumstances," he says.

• ED physicians may relocate. The liability crisis is driving ED physicians to move to states with lower premiums, which may result in a lowering of the caliber of physicians working in certain states and locations, Carius says. "This is not a pretty picture." He advises offering assistance, both professional and personal, for those ED physicians who remain. "Understand that this is not a temporary situation," he warns. "This will not be remedied in the short term. So get prepared."

Resources

For more information about the liability crisis, contact:

• Michael Carius, MD, FACEP, Chairman, Department of Emergency Medicine, Norwalk Hospital, 34 Maple St., Norwalk, CT 06856. Telephone: (203) 852-2281. Fax: (203) 855-3705. E-mail: michael.carius@norwalkhealth.org.

• Larry Vickman, MD, MHA, FACEP, FACPE, President, The Vickman Group, 310 Inner Harbour Circle, Tampa, FL 33602. Telephone: (813) 221-8488. Fax: (813) 221-8490. E-mail: LVickman@Worldnet.att.net.

A resource list of companies that write medical malpractice insurance (MMI) policies for emergency physicians is available on the American College of Emergency Physicians web site (www.acep.org). Click on "Practice Resources," "Professional Medical Liability Insurers (By State)."