By MATT CHANDLER
Buffalo Law Journal

With a drastic overhaul to the nation's health-care system seemingly on the horizon, the heat has been turned up on a long-simmering topic within the industry - the cost that medical-malpractice litigation is having on a system already hemorrhaging millions of dollars.

Proponents of reform (among them doctors and Republican lawmakers) argue that the current malpractice system costs taxpayers billions of dollars through excessive verdicts and mountains of litigation. The quality of health care itself is jeopardized, they say, as many doctors opt to close up shop rather than buckle to crippling insurance rates and lawsuits.

Opponents of reform (generally speaking, trial lawyers and Democrats) say the reports of the demise of health care, at least as it relates to malpractice litigation, have been greatly exaggerated.

While both sides agree that something needs to be done, what exactly that something is, is a point of sharp contention.

Dr. Carlos Santos, an obstetrician with OB/GYN Associates of Western New York, has been delivering babies for 23 years. He says he currently pays $55,000 annually for medical malpractice insurance. While his field puts him in the category of high-risk specialties, Santos says it is frustrating to try to do his job in an era of finger-pointing.

"Litigation is always an issue with delivering babies, and you practice defensive medicine to some extent," he said. "The problem nowadays is that people aren't willing to live with a margin of error." Santos says he believes the medical advances of the last half-century have encouraged people to expect perfection from their doctors.

"Especially in my field of obstetrics, people expect the perfect product, no matter what," Santos said. "People are overweight, people smoke, they drink, they bring some baggage into the equation just by their lifestyle, and they don't want to take that into consideration on how it affects what I'm doing on my end."

Santos believes something has to be done on the legislative side to curb the rising tide of malpractice litigation.

"I think the lesson to be learned is that we don't have to reinvent the wheel," he said. "Maybe we need to look at other countries to see what they are doing. I think there are ways that are more fair than what we do now in this country."

As for the lawsuits doctors face, while he says some are certainly justified, Santos worries that people are unwilling to consider that there are times when things just don't go as planned, and there isn't always fault to be assigned.

"The emotional factor comes into play. It is never easy when a baby is born with a defect or when something goes wrong in the delivery," he said. "Sometimes people forget that we are physicians, but we also have feelings and we are going through this with them."

Santos isn't alone when he talks about physicians practicing "defensive medicine." Dr. Michael Cropp, president and CEO of Independent Health, says defensive medicine - for example, ordering medically unnecessary test and X-rays or requiring redundant testing "just to be sure" - costs the health-care industry a staggering amount of money each year.

"Reasonable organizations who have looked at this estimate that the total cost of both malpractice and defensive medicine represents about 10 percent of the total health-care (dollars) spent," he said. "When you think of $2.4 trillion dollars (spent on health care), that number is just enormous."

Dr. Ilene Snow, a general practitioner with Buffalo Medical Group, says the numbers are troubling, but not only in terms of dollars spent because of malpractice.

"Of all the neurosurgeons in New York state, 71 percent of them have been sued (for malpractice), 67 percent of all OB/GYNs have been sued and 62 percent of all of the surgical specialties have," she said. "If you look at that, are we really saying only 29 percent of neurosurgeons don't make mistakes?"

Snow says those statistics aren't lost on incoming doctors deciding where to begin their medical career.

"So many young medical students and residents have been educated with the mantra ‘It isn't if you get sued, it's when you get sued,' " she said.

At least one lawyer who represents patients in medical-malpractice lawsuits disagrees.

Laraine Kelley of Lipsitz Green Scime Cambria LLP says much of the hype surrounding medical malpractice is just that - hype.

"People talk in terms of excessive verdicts and frivolous cases, and I think both have a lot of falsehood to the notion," she said. "The cost of a medical-malpractice case these days can run upwards of $20,000-$30,000 out of pocket, just for expert witnesses. When you are spending that sort of money, you don't do it for a frivolous enterprise."

Kelley says there is almost no such thing as a verdict where there is a frivolous claim, and she blames the fourth estate for advancing such ideas.

"The media has bought hook, line and sinker the idea that medical malpractice has harmed care, driven good doctors out of the community and has resulted in unjustified large verdicts," she said. "That is the enemy of injured persons."