Garden State Topic: Doctors Forego Walkouts and Protests to Find New Ways to Get Lawmakers to Listen

Dave Knowlton | December 26, 2012 | Opinion
Cooperation, not confrontation, key to achieving malpractice reform in NJ

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Nearly a decade ago, thousands of New Jersey physicians marched on Trenton, leaving their offices empty in one of the largest physician strikes ever. The walkout received nationwide media coverage as busloads of doctors in white coats carried placards outside the State House in Trenton. The doctors fought for malpractice reform.

The quiet years since – with no new doctor walkouts or marches – may have left the impression that the state’s physicians eventually got what they wanted. Or that the malpractice crisis somehow resolved itself.

Not true. The malpractice crisis remains very much an issue today. Doctors in New Jersey continue to leave the state or stop practicing altogether because of out-of-control malpractice premiums, especially in the fields of obstetrics and certain types of surgery, such as neurosurgery. Young physician residents trained in New Jersey continue to leave the state to set up practices in states with more favorable malpractice environments.

The 2003 doctor walkout rallied physicians but did nothing to change the laws. The physicians also discovered that canvassing door-to-door to defeat popular legislators, such as state Sen. Joseph Vitale, failed to change election outcomes but did much to harm their relationships with lawmakers.

The rhetoric of those days was rough. A consumer group accused striking doctors of trying to “terrorize” patients. Doctors walked door-to-door in white coats telling voters to vote out legislators – especially lawyer/legislators – who opposed tort reform.

Now some physicians in New Jersey are trying a new tact.

Recently I have been speaking to physicians who believe they must find new ways to communicate their needs to state lawmakers. The Quality Institute supported a gathering recently organized by NJ Obstetrical and Gynecological Society President Dr. Donald Chervenak and Dr. Ronald J. Librizzi, a prominent ob-gyn. Some 70 physicians spoke with Vitale and Assembly Republican leader Jon M. Bramnick at the gathering.

Residents got up and talked about wanting to set up practices in New Jersey but being fearful of the high malpractice premiums. They said a lawsuit during residency could hurt a doctor’s efforts to get started in the business of medicine. Others spoke about the challenges they face trying to pay escalating premiums as reimbursements decline.

Those malpractice premiums drive up the cost of medicine and drive good doctors out of medicine. We need to find ways to control premiums and keep doctors taking care of patients in New Jersey.

The conversation between the lawmakers and the physicians took place in at atmosphere of mutual respect. The atmosphere of hostility needed to end for real communication to take place. Both sides now must work to find common ground – and there is common ground.

Take a bill that Bramnick supports. It would provide some protections for medical residents and nursing students who get drawn into lawsuits. The students and residents generally are on the periphery of a case since their role is educational. But they nonetheless can get pulled into a lawsuit if something goes wrong with a patient. (If a resident or nursing student actually performs direct care egregiously there would be an exception).

We also may look at creating “safe harbors” that create protocols that can protect doctors who do everything right. For instance, a doctor finds a lump in a patient’s breast. The doctor advises the patient to obtain a mammogram. He or she sends a follow-up letter. The patient never follows up with the mammogram. The patient eventually discovers she has invasive cancer and sues the physician. What protocols are required – how many letters, how many phone calls? – to protect the physician from a lawsuit in a case like this?

The same is true with so-called wrongful life cases. Doctors may advise the patient to seek prenatal testing. But what if the mother-to-be does not follow up with the testing, or declines testing, and ends up delivering a baby with a serious genetic defect? Can we outline the specific informational requirements doctors must provide to pregnant patients that would be considered sufficient to protect a physician from a wrongful life lawsuit?

These ideas are just a starting point. Clearly, we must bring doctors and lawmakers together to problem-solve. We must develop honest dialogue to reduce the burden of malpractice insurance. At some point we need to bring – dare I say? – lawyers into the conversation along with doctors and lawmakers and insurers.

Doctors need to talk openly about how we can fairly compensate people who have been harmed by malpractice. Lawyers need to talk about what truly is malpractice and what is a bad medical outcome.

The Quality Institute will continue with the effort to bring parties together. That is a role we can play – as a catalyst to get the conversation started and bring people to the table. We know we will accomplish more with honest dialogue than with continued hostility and anger.