Task Force on Medical Liability Reform in Radiology - White Paper

American College of Radiology

Task Force on Medical Liability Reform In Radiology - White Paper

Report to the Board of Chancellors and Council

May 1, 2004

I. Introduction and Origins of The Task Force

The ancient volcano Mount Vesuvius loomed ominously over Roman civilization and exploded often enough to destroy lives and property. Similarly, the smoldering issue of medical liability potentially threatens the survival of medicine. Physicians, hospitals and insurers confront soaring jury liability awards.¹They grapple with higher liability insurance premiums that have priced many practitioners away from their chosen specialty or out of medicine altogether.²Most importantly, many United States residents worry that spiking medical liability costs might restrict their access to care.³The current medical liability crisis manifests the access and cost symptoms that trace back decades. What has the Congress done to address the liability crisis? Regrettably, not much – gridlock in the United States Senate continues to thwart efforts to enact any medical liability reform legislation. Prospects for liability reform on Capitol Hill, particularly in a divisive Presidential election year, remain very slim. 2005 might offer hope for reform if key Senate races turn accordingly.

The American College of Radiology recognizes that the medical liability crisis presents very high stakes for quality patient care. In November 2003, the College created a Task Force on Medical Liability Reform In Radiology to assess the issue and its impact on the ACR membership. Leadership charged the Task Force with reviewing national and state liability reform efforts, researching various medical specialty societies’ approaches to reform, and formulating a proposed position for the College. This paper will outline how medical liability started and analyze the liability problem in the U.S. and several states. It will focus on how medical liability affects the radiology professions from ACR members’ own perspectives. Finally, the paper will compare legislative and public relations efforts of the AMA and one specialty-based coalition. Most significantly, the Task Force will recommend that the ACR contribute to the AMA’s Patient Action Network and urge that the ACR prioritize the issue on Capitol Hill and with ACR state chapters.

A. History and Current Status of Medical Liability in America

Society has held physicians accountable for their medical acts and omissions since time immemorial.⁴The Jewish Talmud viewed physicians as liable only if they intentionally harmed

^{1
^{2 Blue Cross Blue Shield Ass’n, The Malpractice Insurance Crisis: The Impact on Healthcare Cost and Access 3 (2003).
^{3 Medical Liability Reform – Now! American Medical Association, March 26, 2004.
^{4 Berlin L. Radiologic Malpractice Litigation: A View of the Past, a Gaze at the Present, a Glimpse of the Future. AJR 2003:905-915.

British legal scholar Sir William Blackstone defined in his Commentaries on the Laws of England the "neglect or unskilled management of a physician or surgeon" as "mala praxis."⁸This concept evolved to today’s all-too-familiar "malpractice."⁹As early as 1769, British courts decided medical negligence cases that established a standard of care assessing a physician’s conduct.¹⁰In the Slater v. Baker and Stapleton case, the court notably ruled that a physician could be found liable only if another physician testified that his conduct violated the standard of care.¹¹Ironically, the court further held that only another physician in the defendant practitioner’s locality could testify against them.¹²}
The United States experienced the first recorded malpractice litigation in 1794. By the mid-19^{th century, state courts routinely heard standard-of-care-related cases. The Connecticut Supreme Court in 1832 affirmed a jury verdict for a plaintiff against a physician, ruling that the plaintiff could recover damages if she proved that the physician displayed "either carelessness, or a want of ordinary diligence, care, and skill…"13 Other state high courts also focused on whether a physician exercised a "reasonable degree of skill and care."14 Throughout the 20th century, most state courts consistently followed those earlier decisions on a medical standard of care.15}
As U.S. state courts developed the judicial or ‘common’ law on medical malpractice, state legislatures enacted statutes that established state licensing of physicians.16 In 1870, Texas became the first jurisdiction to adopt a contemporary state licensure law. By 1905, 39 of the 45 states enacted licensing laws.17
B. Medical Liability Symptoms
Many ACR members and other physicians have experienced firsthand the liability crisis’s impact. First, numerous physicians have struggled to obtain or renew their malpractice insurance policies. Physicians who specialize in obstetrics-gynecology and breast imaging, which involve greater risk of poor outcomes and thus are targets of the trial bar, have found affordable liability
5 Rosner F., Biblical and Talmudic medicine. New York: Hebrew Publishing, 1978:27-31
6 Id.
7 Berlin, at 906.
8 Id., citing Blackstone W., Commentaries on the Laws of England, Oxford, England: Clarendon, 1768:122.
9 Mohr JC, American medical malpractice litigation in historical perspective, JAMA 2000;283:1731-1737.
10 Berlin, at 906-907, citing Rosenbaum S: Law and the public’s health: medical errors, medical negligence, and professional medical liability reform. Public Health Rep 2003:118:272-274.
11 Id.
12 Id.
13 Berlin, at 907, citing Landon v. Humphrey, 9 Conn. 209, 1832.
14 See, e.g., Ritchie v. West, 23 Ill. 329, 1860.
15 Berlin, at 909.
16 Berlin, at 909.
17 Buckner F. Overview of the history of medical malpractice. West Hartford, CT. The Graduate Group, 1999:31-54, 68-80, 94-96, 106-113, 152-154.}
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insurance elusive.¹⁸Even if physicians secure coverage, they more often pay considerably higher premiums for the same or even reduced limits. Although empirical evidence of an access problem for medicine is difficult to obtain, the Physician Insurers Association of America (PIAA) recently indicated that many of its member companies are at capacity and have a moratorium on writing new policies regardless of the physician specialty, locale or claim experience.¹⁹}
Second, the crisis has affected hospitals dramatically. Some physicians such as hospital-based practitioners must carry higher levels of coverage than other specialists to obtain hospital privileges.²⁰This is related to a perception of higher risk that a hospital will be named as codefendant in a malpractice suit targeting a hospital based physician. An American Hospital Association survey showed 45 percent of hospitals indicated the liability crisis caused a loss of emergency department physicians and/or diminished coverage in emergency departments.²¹An industry benchmark study found that hospital liability claims for 2004 are likely to average almost $150,000 – nearly doubling since 1996.²²Physician liability claims for the 2004 event year probably will average $178,000, up from $120,000 in 1996.²³Insurance officials attribute claims severity as a trigger for the market increases.²⁴}

Third, physicians who are sued for negligence and found liable – although a very small number -- are paying dramatically higher jury awards. Most research indicates that plaintiffs win less than a third of medical liability cases but recover significant dollar payments when they prevail.²⁵The median medical liability award in medical liability cases skyrocketed an alarming 110 percent from 1994 to 2002, reaching over $1 million.²⁶Physicians who win at trial still must incur major legal defense costs that average over $91,000 per claim.²⁷Insurance companies usually pay these costs, which contribute to increasing premiums. Liability suits exact a disturbing financial, and psychological, toll on a physician whether they win or lose.

Fourth, the liability crisis malady has forced many residents and medical students to reevaluate their professional futures.²⁸Over 60 percent of medical residents identified

liability issues as their top concern in 2003, far above the 15 percent in 2001 who

said those issues concerned them.²⁹This may affect their choice of residency and specialty.

Against this unstable backdrop, the United States’ judicial system itself arguably aggravates the crisis symptoms. According to a 2003 Congressional study, the medical liability system has a

^{18 Medical Liability Reform – Now!, at 8-15
^{19 Lori A. Bartholomew of PIAA, conversation with ACR staff, November 2003.
^{20 Personal communication with Milton Guiberteau, M.D., Houston, Texas.
^{21 Am.Hosp. Ass’n, Professional Liability Insurance Survey (2003).
^{22 Aon’s Risk Services Hosp. Professional Liability and Physician Liability Benchmark Study (2003).
^{23 Id.
^{24 Id.
^{25 Joint Economic Committee, United States Congress (2003): Liability for Medical Malpractice: Issues and Evidence. Other studies show plaintiffs in medical liability cases win at trial up to 39 percent. Jury Verdict Research, Current Awards Trends in Personal Injury: 2002 ed. (2003), 46.
^{26 Jury Verdict Research, 18.
^{27 Lori A. Bartholomew, PIAA, remarks to American College of Radiology (May 13, 2003).
^{28 Meritt, Hawkins & Assoc. Summary Report: 2003 Survey of Final Year Medical Residents 5 (2003).
^{29 Id.
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fundamental flaw because most occurrences of malpractice do not produce a legal claim, while most malpractice claims are not linked to any negligent act.³⁰About 80 percent of malpractice claims exhibit no indications of a negligent injury yet only 3 percent of injuries caused by negligence result in a claim.³¹One possible explanation for this trend is that trial attorneys generally will take malpractice cases just for "attractive" clients, e.g., sympathetic victims who have high damage claims.³²}
A litigious judicial system has forced more physicians to practice defensive medicine, which involve studies and treatments that occur to avoid being brought up the courthouse steps.³³Examples include sending patients to emergency departments; specialists refusing to take call there; and declining to handle elective referrals from those departments and "safety net" clinics, particularly for uninsured patients.³⁴The systemic costs are staggering: an estimated $70-126 billion per year.³⁵}
What might quiet the medical liability crisis volcano, if not make it permanently dormant? Legislative reform and focus on patient safety concerns could prove the solution. We now discuss the College’s initiative.
C. Why ACR formed the Task Force
In recent years, the scope of the crisis became clearer to the College. It heard from numerous members who were sued for negligent acts or omissions, paid higher premiums and/or had a stronger sense of unease about their professional future and that of patient care. The College collaborated in the late 1990s with PIAA on studies that demonstrated how ACR Standards were used in malpractice litigation and illustrated the legal risk of performing breast imaging.³⁶}
The College Board of Chancellors devoted part of its November 2003 meeting to the liability crisis. It heard presentations by Stewart Dunsker, M.D., a neurosurgeon representing a specialty-based coalition, Doctors for Medical Liability Reform (DMLR); and Edward Hill, M.D. representing the AMA. Dr. Dunsker asked the ACR to contribute $1,000,000 yearly to his organization until satisfactory liability reform is achieved.
The Board realized that the liability situation is complex and costly, and that the College had to study it before adopting a position. Chair E. Stephen Amis, Jr., M.D. appointed a diverse task force to analyze the issues and recommend a position to the May 2004 ACR Council.
^{30 Joint Economic Committee, United States Congress (2003): Liability for Medical Malpractice: Issues and Evidence.
^{31 Harvard Medical Practice Study, 7-34; and Studdert et al., 253.
^{32 Joint Economic Committee at 3.
^{33 Medical Liability Reform – Now!, at 6.
^{34 Robert Berenson et al., Center for Studying Health System Change, Medical Malpractice Liability Crisis Meets Markets: Stress in Unexpected Places, (2003).
^{35 Medical Liability Reform – Now!, at 6.
^{36 PIAA & ACR, Practice Standards Claims Survey (1997), 16-17.
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D. Task Force activities
Since November 2003, the Task Force has held four conference calls. Members and staff have accumulated information on the liability crisis from several publications and by communicating with the AMA and the Alliance of Medical Specialty Societies. The Task Force immediately perceived that it should reach out to College members to obtain their ‘pulse’ on the liability crisis. Task Force members and staff developed and a comprehensive two-phase email survey, the 2004 ACR Malpractice Liability Survey. Phase one of the malpractice survey was a membership-wide survey administered to 17,000 ACR members through the ACR E-News and the second phase of the malpractice survey was emailed to a random sample of 1000 members. Additionally, information obtained from the 2003 ACR Survey of Radiologists provides further insights into malpractice issues. The 2003 Survey, a general-purpose large-scale survey, was mailed to approximately 3,000 radiologists (ACR members and nonmembers) and utilized specified sampling and statistical techniques to assure the representativeness of findings. Section V of this paper will summarize the results of both of these surveys.
II. Charge to the Task Force
Dr. Amis charged the Task Force on Medical Liability Reform with: a) researching how commonly medical liability issues affect the ACR membership; b) examining the various medical groups that advocate for liability reform and assessing what groups are seen as most effective; and c) identifying the organized resistance to liability reform at the national and state levels and researching prior, current and future reform efforts. The Task Force next would develop a proposed College position that would include, at a minimum, the following:
Once it assessed the threat of medical liability issues to radiologists, and identified and clarified the proponents and opponents of reform, the Task Force would formulate a proposed position for the College with regard to medical liability reform. This proposed position should include, at minimum, the following:

• With which group(s) should the College be allied, if any?

• How much money should the College plan to invest in the efforts, with whom, and over what period of time?

• Should the College support only an all-physician solution or an initial specialty-specific solution ("camel’s nose under the tent" approach)?

- As a corollary, should mammography be handled separately or given special status within radiology?

• How should the College be involved in state efforts to enact legislation for medical liability reform?

III. Composition of the Task Force
Chairman: Paul Ellenbogen, M.D., Texas
Richard Bagby, M.D., Florida
Leonard Berlin, M.D., Illinois
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Albert Blumberg, M.D., Maryland
R. Nick Bryan, M.D., Pennsylvania
John Knote, M.D., Indiana
Frank McWilliams, M.D., Ohio
Thomas Payne, Ph.D., Minnesota
Jon Shanser, M.D., California
Ajay Sood, M.D., New Jersey
Julie Timins, M.D., New Jersey
Staff:
Cynthia Moran
Thomas Hoffman, Esq.
Joshua Cooper
Leonard Lucey, Esq.
Yasmin Cypel, Ph.D.
Heng Diep

IV. Problem and responses

A. National
Medical liability reform has assumed top priority for organized medicine as the nation girds for an intense, partisan campaign in 2004. The AMA has tried to establish a leadership position on Capitol Hill by casting itself as the unified voice of medicine.³⁷Its Campaign for Medical Liability Reform aims to launch a grassroots-based network "designed to impact the political landscape and ultimately pass medical liability reform at the federal level."³⁸The Alliance of Specialty Medicine that represents the ACR and other medical specialty societies advocated for reform before the Senate Judiciary Committee.³⁹A landmark PIAA study of medical malpractice data that reviewed 18 years of liability claims and payments reported that paid claims totaled over $10 billion.⁴⁰Rising costs and access problems have affected the most vulnerable health care consumers: the elderly.⁴¹Also, as noted earlier, doctors-in-training harbor deep concern about the volcanic liability environment.⁴²}
As discussed in Section V, the major liability impact point for radiology is breast imaging, especially mammography. Chief symptoms include decreased access for patients because hundreds of mammography facilities have closed in the U.S. Fewer radiology residents are willing to pursue fellowships in breast imaging because they believe the field has higher liability.⁴³Ironically, their colleagues already practicing breast imaging appear less troubled by
^{37 AMNews, "AMA Vows United Voice in Battle for Tort Reform," Jan. 5, 2004, Vol. 47, No. 1
^{38 AMA Campaign for Medical Liability Reform Status Report, April 2004.
^{39 Alliance of Specialty Medicine statement before the Senate Judiciary Committee on "Patient Access Crisis: The Role of Medical Litigation," February 10, 2003.
^{40 Executive Summary, PIAA Data Sharing Project (2003).
^{41 AMNews, "Tort Crisis Hits Nursing Homes," Mar. 8, 2004, Vol. 47, No. 10.
^{42 Texas Medicine, "Medical Students Antsy About Liability Climate that Awaits Them," March 2004, pp. 33-35.
^{43 American College of Radiology Survey (2003).
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the medical-legal climate.⁴⁴A 2003 ACR survey revealed that malpractice concerns were, if anything less common among breast imagers than among general radiologists. 32 percent for mammographers and 38 percent for general radiologists.
B. State Action
States serve as the laboratories of public policy. The medical liability reform battle
reinforces that maxim, as more than three-quarters of the U.S. states have enacted or
are trying to enact liability reform legislation. At least nineteen of these are "crisis" states: Arkansas, Connecticut, Florida, Georgia, Illinois, Kentucky, Mississippi, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Texas, Washington, West Virginia and Wyoming.⁴⁵Twenty-five other jurisdictions and the District of Columbia demonstrate warning signs such as restricted access to coverage and higher liability premiums.⁴⁶The health care industry has deemed California and five other states "safe" or non-crisis states. California’s Medical Injury Compensation Reform Act (MICRA) is the "gold standard" of liability reform because it has cut litigation costs substantially while compensating patients much more quickly.⁴⁷The MICRA caps on non-economic damages spur more claims settlements.⁴⁸This section will outline current and reform efforts underway in various states.
New Jersey physicians have struggled unsuccessfully for reform. With a Democratic Governor who has strong support from the American Trial Lawyers of America (ATLA), physicians are unlikely to achieve liability reform under present conditions. The New Jersey legislature appears willing only to pass small concessions, but firmly oppose against caps on non-economic damages and comprehensive reform, and have not allowed judicial panel legislation (judge, physician, attorney) to advance. It is questionable whether New Jersey would enact "carve-out" or incremental reform legislation for areas such as obstetrical care or mammography.
For years, Florida represented one of the riskiest states in which to practice medicine. Many Florida physicians decided to move out of state or stop performing high-risk services like delivering babies and performing complex surgeries.⁴⁹However, in 2003, Governor Jeb Bush pushed through the Florida legislature reform legislation that capped non-economic damages.⁵⁰While the law limits such damages to $500,000 per claimant for practitioners, neither the Governor’s Task Force nor the Florida Medical Association supported the legislation because it exempts cases where negligence results in death or a permanent vegetative state.⁵¹Many physicians remain skeptical, though, that the law will reduce premiums more than 2-3 percent in the next two years. The ACR has supported a bill moving through the Florida legislature that would immunize from liability radiologists who perform mammography services. This bill has a rather novel concept of great appeal to mammographers, but was unlikely to gain approval. The
^{44 Id.
^{45 American Medical Association, America’s Medical Liability Crisis: A National View, July 2003.
^{46 Id.
^{47 Medical Liability Reform – Now!, at 28.
^{48 Id.
^{49 Florida Medical Association, Out of Control Insurance Premiums Driving Florida’s Healthcare to Crisis Point, June 24, 2002.
^{50 Medical Liability Reform – Now!, at 19-20.
^{51 Id.
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legislature instead approved a study of the availability, quality and cost of mammograms and commissioned a blue-ribbon workgroup on mammography accessibility to report to the Governor by December 2004. Florida reform advocates have proposed a referendum for constitutional amendments that would limit attorney contingency fees and impose a strict $500,000 cap on non-economic damages without any exceptions.
Like its neighbor New Jersey, Pennsylvania has been inhospitable to medical liability reform. Observers have characterized Pennsylvania’s environment as a "recipe for a medical liability system disaster" and having "all the ingredients to destroy the practice of medicine."⁵²}
In 2000, Pennsylvania ranked the second highest paying state for medical liability lawsuits, totaling more than $350 million, or 10 percent of the national total.⁵³Hundreds of physicians have left Pennsylvania because its insurance rates have jumped exponentially. Neither of the two remaining medical liability insurers provide more than $500,000 in coverage.⁵⁴Modest legislative relief arrived last December through H.B. 44, the Health Care Provider Retention Program.⁵⁵This gives Pennsylvania physicians a complete or partial abatement on their state insurance assessments for 2003 and 2004. The catch is that physicians who accept the abatement must agree to practice in Pennsylvania for at least one full year following the year when they received the abatement.⁵⁶}
Maryland physicians work under a $635,000 non-economic damages cap that has reduced lawsuits while encouraging settlements. The Maryland Senate defeated a comprehensive liability reform package that would have lowered the cap to $500,000, but physicians and other allies are advocating for other legislation supported by the Governor and House members, including elimination of dual reimbursement of medical and other insurance payments and of a separate cap for wrongful death-related actions. The only likely result is a mandated task force to study the reform issue.
A similar liability roller coaster has occurred in Texas. Since 2001, 62 percent of Texas physicians have started denying or referring high-risk cases and 52 percent no longer provide certain services to their patients.⁵⁷Almost two-thirds of Texas physicians surveyed indicated that the liability climate deterred them from taking high-risk cases.⁵⁸To combat this access crisis, Texas’s legislature enacted a MICRA-like bill in April 2003.⁵⁹This legislation featured a hard $250,000 cap on non-economic damages per claimant in any judgment against a physician or provider.⁶⁰Then Texas voters in September 2003 narrowly approved a constitutional amendment to allow a cap on non-economic damages.⁶¹The pro-amendment forces overcame considerable funding by personal injury trial lawyers, which outspent the Texas Medical
^{52 AMNews, November 17, 2003 (quoting Donald J. Palmisano, M.D., President).
^{53 Id.
^{54 Id.
^{55 Medical Liability Reform – Now!, at 22.
^{56 Id.
^{57 Id. at 14.
^{58 Id.
^{59 Id.
^{60 Id. at 22-23.
^{61 Id. at 24.
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Association by a 2-1 margin. In response, the Texas Medical Liability Trust, the malpractice insurance provider for a large segment of Texas physicians reduced malpractice premiums by 12 percent effective January 1, 2004 when physicians renew their policies. The TMLT Board Chair forecasts that reduced indemnity losses will take years to occur.⁶²Between June and September 2002, Texas trial lawyers filed lawsuits against Texas physicians at a rate of 300 percent higher than during the same period in 2003. Progress in the medical liability reform battle happens in small steps. To close pre-reform lawsuits will require years, as will adjudicating post-reform cases that are only beginning to move through the state’s judicial system.
High premiums and a shrinking pool of insurers in Connecticut have reduced access to patient care such as OB/GYN and other medical services. The legislature has debated reforms that would scrutinize expert witness physicians and lower interest rates on pretrial settlement offers.⁶³Yet the Governor says he will veto any measures that does not contain damage caps. Physicians in Connecticut have sought a $250,000 cap on non-economic damages, while the Governor and General Assembly leaders favor a $350,000 cap against individual physicians and $650,000 for hospitals.⁶⁴}
V. Radiology interest and impact: Membership Survey
Breast imaging stands as the subspecialty within radiology that the liability crisis has most affected. ACR-PIAA data shows that mammography is the most common examination for which radiologists are sued, and that failure to diagnose breast cancer is now the most common cause of malpractice actions.⁶⁵}
Over the past 24 months radiologists have reported reductions in the availability of mammography services and in a growing number of cases, the closing of mammography facilities. During this time, ACR has tracked the number of closings that now stands at over 700 nationwide. These reductions have led to longer waiting periods for women scheduling annual and follow-up mammography visits, which in turn can lead to clinical implications. The ACR believes that the main reasons for the reduction in services can be attributed to the fact that many imaging facilities can no longer afford to offer these services due to low Medicare reimbursement and a shortage of trained staff.
Current data from ACR members validates the national and state liability crisis trends. The Task Force commissioned a two-phase e-mail survey, the 2004 ACR Malpractice Liability Survey, designed to specifically address malpractice issues. Response rates for phases one and two were approximately 9 percent (1,452/17,000) and approximately 29 percent (291/1,000), respectively. Phase I of this membership-wide e-mail survey utilized and 11-item questionnaire that focused on topics such as whether malpractice insurance was being carried, annual premiums, and whether the physician was ever involved in a malpractice claim or lawsuit--these findings are presented in the first two paragraphs below. Phase II of this e-mail survey, which was sent to a much smaller randomly selected sample, utilized a 3-item questionnaire that focused on the
^{62 Texas Medicine Journal, "Be Patient – Med Mal Tort Reform Will Work," Howard Marcus, M.D.
^{63 "Rowland vows to veto malpractice bill without damage cap", New Haven Register, April 22, 2004.
^{64 Id.
^{65 PIAA Breast Cancer Study (2002).
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feasibility of a member-based subsidization of a public relations campaign on malpractice insurance.
Of the 96 percent who reporting carrying medical malpractice liability insurance in phase I of the 2004 e-mail survey, 99 percent reported an increase in their malpractice premiums in the last three years. Of those reporting an increase, 65 percent reported an increase of 25 percent or more. Of the 37 percent who reported a change in their malpractice insurance carrier in the last three years, the highest percentage (42 percent) reported that their carrier no longer provided malpractice coverage. Almost 10 percent were encouraged to stop interpreting mammograms or to stop other services. Of all those responding to phase I, 58 percent reported that they had been a defendant in a medical malpractice lawsuit or claim. Notably, the survey found no significant differences in this percentage for mammographers versus that derived for interventionalists, general radiologists, or radiation oncologists. Eighty-six percent reported that they had not stopped certain studies because of malpractice concerns or inability to get liability coverage. Of the 14 percent claiming that studies had been stopped, the most common type of studies reported was mammograms. Over 90 percent stated that tort reform was important to them.
Median premiums were approximately the same for the Midwest ($20,000), Northeast ($21,000), and the South ($20,230), but lowest in the West ($16,000). Median premiums were equal to or above $30,000 for the following states: Florida ($45,500), Illinois ($32,000), Ohio ($30,000), New Jersey ($30,000), and West Virginia ($38,000). Overall, the median premium paid was $20,000.
Findings from phase II of the 2004 e-mail survey indicated that 77 percent of respondents would favor ACR donating more than $500,000 to $1 million a year toward a public relations campaign. However, only 57 percent said that they would make a voluntary personal contribution to fund this type of project and slightly less than half supported a mandatory assessment of all ACR members to contribute to a major public relations initiative. The Task Force members believe that the percentages just revealed may not accurately reflect the feelings of the ACR membership at large, and may artificially inflate the numbers, since respondents to an e-mail survey would be expected to be more interested in this issue.
Findings from the 2003 ACR Survey of Radiologists and Radiation Oncologists indicated that the medico-legal climate was not any more important among mammographers as among diagnostic radiologists overall in influencing satisfaction level with the profession. The medico-legal climate was important for those reporting themselves to be less satisfied with the profession relative to 5 years ago--this was the main factor cited for this group. In contrast, among all diagnostic radiologists, the importance of medico-legal climate in influencing satisfaction level was ranked below lifestyle and income concerns.
VI. Federal Legislation and Public Relations Strategies

A. Federal Legislative Activity

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Federal legislation designed to reduce medical liability premiums has been debated throughout the 108^{th Congress. The following summarizes the status of the various legislative efforts put forth by the House and Senate:}
House of Representatives - In response to the medical liability crisis, on March 13, 2003, the House of Representatives passed H.R. 5, the "Help, Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act of 2003" by a vote of 229 to 196. The key provisions of the bill include:

􀂃 Unlimited economic damages, including future medical expenses and loss of future earnings;

􀂃 $250,000 cap on non-economic damages, such as pain and suffering, and limits on punitive damages to the greater of twice the economic damages or $250,000;

􀂃 Flexibility to allow states to impose their own limits on damages;

􀂃 1-year statute of limitations; 3 year statute of repose;

􀂃 Proportionate share liability.

The House bill applies not just to physicians, but also to hospitals, nursing homes, HMOs and other health insurers, and drug and device companies. The "scope" of this bill is a fairly contentious issue and Democrats have asserted this as one of their key points of opposition.
Moving the Debate Forward in the Senate. Meanwhile, Senate leaders continue to struggle to get the requisite votes necessary to pass legislation, and to date they can only depend on approximately 45-47 "yes" votes. Under the rules of the Senate, 60 votes are needed to prevent a filibuster and close debate on an issue to ensure passage of any legislation. Over the past several years, the House has repeatedly voted to pass reform legislation, however, the Senate has never supported legislation that has included any cap, particularly a $250,000 cap on non-economic damages.
The Senate has tried several times to pass medical liability reform legislation this Congress, but has not gotten the necessary 60 votes to continue debate on this issue. In July 2003 the Senate voted on a comprehensive medical liability reform bill, S 11 but the vote to prevent a filibuster failed 49-48. Two more subsequent votes in February and April of 2004 on narrower liability legislation that carved out obstetric services and emergency services failed as well, 48-45 and 49-48 respectively. Majority Leader Frist has vowed to continue to bring up the issue for debate throughout the remainder of the 108th Congress.

B. Public Relations Activity

To influence the congressional debate on this topic, various medical societies have developed Public Relations (PR) campaigns. The Task Force was asked to determine 1) which prominent groups were advocating for medical liability reform and 2) which, if any, should receive financial contributions from ACR to assist in their efforts.}
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PR Campaigns. The Task Force determined that the two most prominent PR campaigns are being conducted by the American Medical Association’s (AMA) "Patient Action Network" and the DMLR, a self-described "coalition of 230,000 practicing medical specialists dedicated to protecting patients’ access to healthcare by promoting the passage of federal legislation to put a cap on non-economic damages awarded in medical liability cases." Both groups previously made presentations to the ACR Board of Chancellors in November 2003 (DMLR Presentation Attached) and have requested financial contributions from ACR.
The AMA’s effort uses more traditional grassroots tactics and focuses primarily on recruiting patient advocates who will contact their lawmakers in a variety of different ways in order to convince them to vote in favor of medical liability reform legislation. AMA claims to have recruited over 80,000 patient advocates since October 2003. AMA has requested funds from both individuals and from fellow medical societies. ACR previously contributed $25,000 to AMA’s efforts in early 2003.
DMLR currently has 10 medical societies contributing to its efforts and does accept personal donations at its web site (www.protectpatientsnow.org ). The majority of the societies that have joined DMLR each have committed to contributing $1 million annually to the DMLR "until the medical liability problem is resolved." DMLR has requested that ACR participate at that $1 million level. Considering the fact that enacting medical liability reform could take several years, DMLR essentially requests a multi-million dollar commitment from each organization that joins its coalition. The DMLR is currently using the bulk of its financial resources to produce 30-minute "infomercials" to be aired in states where lawmakers opposed to medical liability reform may be vulnerable.
C. The Opposition
Those opposing liability reform at both the state and federal levels include the Association of Trial Lawyers of America (ATLA) and some so-called public advocacy groups such as Public Citizen. Some local chambers of commerce in Florida apparently oppose liability reform because the trial bar threatened to target their business members. The news media has been generally pro-trial attorney and anti-physician. Democrats in Congress and state legislatures generally have opposed comprehensive liability reform and particularly any caps on non-economic damages.
D. The Support
Republican legislators such as United States Senate Majority Leader Frist generally support meaningful liability reform from the physician's perspective, at both the state and federal levels. The AMA and DMLR favor comprehensive tort reform, as do virtually all physician professional and specialty organizations.
VII. Political Climate
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In making a recommendation to contribute significant financial resources to a medical liability reform PR campaign, the reality of the current and future political climate in Congress and in current and future Administrations must be factored into any decision.

A. Congress

Political Reality. Over the past several congresses, the debate over medical liability reform has primarily broken down along party lines. In general, the vast majority of Republicans in both the House and Senate are in favor of medical liability reform and the vast majority of Democrats in both Houses are against it.
Since the House has passed medical liability reform legislation numerous times and the current slim Republican majority in the Senate cannot muster the 60 votes needed to move debate forward, it is unlikely that medical liability reform will be enacted during the 108^{th Congress. Therefore, before liability reform can pass, it appears as though a major change in the make-up of the Senate needs to occur. This means the current Senate ratio of 51 Republicans, 48 Democrats and one Independent must increase significantly on the Republican side for medical liability reform to have any chance of passage in future congresses. The Task Force believes this significant change in the Senate is unlikely to happen in 2004 and it may very well take several elections to realize. However, if the current Republican majority in the Senate, or in the House for that matter, switches to a Democratic majority, it would be highly unlikely that medical liability reform would ever be enacted.}

B. The White House

Kerry vs. Bush. Prospects for the enactment of medical liability reform are also affected by Presidential politics. As for the current Administration, President Bush has made enacting medical liability reform one of his top health care priorities. His likely Democratic opponent, Sen. John Kerry (D-MA) has not been in Washington to vote on any of the three medical liability bills during the 108th Congress, but has stated that he would have opposed the measures.
Given that the 2004 Presidential election promises to be as close as the 2000 contest, there is a real possibility that Sen. Kerry may win the election in November. If that is the case, the Task Force believes that there would be very little chance, if any, for medical liability reform to be enacted as a President Kerry would most likely veto any legislation relating to medical liability reform. The Task Force concludes that it would be unwise to contribute significant financial resources to medical liability reform campaigns during the term of a Kerry Administration.
The combination of the type of PR campaigns proposed by the two organizations and the political factors affecting the medical liability reform debate were considerable factors in the Task Force’s conclusion regarding the timing and the size of any financial commitment.
VIII. Recommendations of Task Force
The Task Force questioned the effectiveness of the efforts of the DMLR campaign that it discussed in more detail in Section VI of this report. ACR government relations staff believe}
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that there is minimal likelihood of liability reform legislation passing in this election-year Congress and therefore believes that any financial support by the ACR to the DMLR campaign would have questionable value. The Task Force thus recommends that the College not contribute funds to support the DMLR activity.
The Task Force also considered the question of whether other organizations were conducting lobbying or public relations campaigns on the malpractice issue that were worthy of financial support. The Task Force decided that the AMA’s Campaign for Medical Liability Reform deserved financial support from the ACR. This particular effort, which includes recruiting patients to communicate with Members of Congress on specific legislation, appears to be a successful strategy with over 80,000 patient activists currently participating.
Separate from the issue of financial support, the Task Force urges the College to continue to make malpractice reform a high legislative priority for our government relations effort, both at the federal level and with our state chapters. The Task Force believes that a one-time contribution of $50,000 to the American Medical Association’s Patient Action Network will be an extraordinary gesture of solidarity with organized medicine and may prove helpful in ultimately gaining liability reform at the federal level.
The Task Force on Medical Liability Reform forwards the following Resolution for approval to the Board of Chancellors and the Council:
Whereas, organized medicine recognizes a crisis exists regarding medical
malpractice, rising insurance premiums and lack of effective tort
reform; and
Whereas, there is strong evidence that these issues have adversely impacted
radiology to such an extent that the Board of Chancellors appointed a Task Force on Medical Liability Reform to survey the ACR membership, research medical organizations, collect and analyze claims and lawsuit data and review current federal and State tort reform laws for the purpose of recommending action to improve radiology’s position in the current crisis; therefore,
Be It Resolved, that medical malpractice reform is recognized as a high legislative
priority for the ACR at both the federal and state levels; and
Be It Further that the ACR make a special contribution of $50,000 to the AMA Patient
Resolved, Action Network in support of a patient grass roots advocacy campaign.
Respectfully submitted,
____________________________
Paul H. Ellenbogen, M.D., Chair
IX. Bibliography (Selected Sources)
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"America’s Medical Liability Crisis: A National View," July 2003,
American Medical Association (map)
Medical Liability Reform – Now!, American Medical Association, March 26, 2004
Jury Verdict Research, Current Award Trends in Personal Injury, 2002 ed. (2003)
American Hospital Association, Professional Liability Insurance Survey (2003)
Blue Cross Blue Shield Association, The Malpractice Insurance Crisis: The Impact on Healthcare Cost and Access (2003)
Meritt, Hawkins & Associates, Summary Report: 2003 Survey of Final Year Medical Residents (2003)
Berlin, L. Radiologic Malpractice Litigation: A View of the Past, a Gaze at the Present, a Glimpse of the Future. AJR 2003:905-915
Rosner F., Biblical and Talmudic medicine. New York: Hebrew Publishing, 1978:27-31
Blackstone W., Commentaries on the Laws of England, Oxford, England: Clarendon, 1768:122
Physician Insurers Association of America, January 2003 statement and charts:

http://www.piaa.org/
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