Posted by David Hyman:
Damage Caps and Medical Malpractice Litigation: VII
http://volokh.com/archives/archive_2008_12_21-2008_12_27.shtml#1229098678
My next set of posts will be on the impact of damages caps on access
to medical services. Because it is hard to measure access directly,
and most of the available measures lack political salience, the debate
usually focuses on the number and specialty of physicians practicing
in the state. This is a problematic measure for all sorts of reasons,
but let's just take it as a given for now.
The focus can get extremely specific. In the debate over enacting a
damages cap in Illinois (ultimately enacted in 2005, and currently
under review by the Illinois Supreme Court), as this article
[1]observes, "the phrase 'there are no neurosurgeons south of
Springfield' came to represent the threat of the medical liability
issue. . ."
This claim was picked up and repeated by physicians, legislators, and
tort reform advocates. Consider a few examples.
There's [2]this article, titled "Illinois physicians say insurance
rates are driving them out of state," and quoting a family physician
(Dr. Mark Dettro):
"We are losing all these doctors to other states where they have
caps on pain and suffering," Dettro said. "There will no
neurosurgeons south of Springfield in Illinois. If you have a car
wreck in Southern Illinois then the odds aren't very good for you."
Dr. Ed Ragsdale was quoted to the same effect in [3]this article:
This has been an uphill battle. We�ve lost all our neurosurgeons
south of Springfield and it�s even affecting those in Chicago."
It wasn't just doctors. Legislators picked up on this talking point.
U.S. Representative Mark Steven Kirk issued a [4]press release that
repeated the claim, and asserted that the problem was spreading:
South of Springfield, there are no neurosurgeons treating patients
suffering from head traumas," said Kirk. "This crisis of care is
now spreading to Chicago's suburbs. With only three neurosurgeons
caring for patients in Lake County, we face the growing threat that
our doctors will not be there when we need them most. If we do not
enact reforms soon, patients will die.
Tom Cross, the Illinois House Republican leader repeated the claim in
a [5]eight page briefing package on the need for medical liability
reform.
Finally, a prominent magazine for hospital trustees, [6]repeated the
claim and provided some geographic context.
According to the American Association of Neurological Surgeons,
high malpractice premiums mean there are currently no neurosurgeons
practicing south of Springfield, Ill.--an approximately 200-mile
gap to the Missouri border.
You hear variations of such claims a lot in tort reform debates. I'm
going to spend some time outlining what we found in Texas when we took
a look at the access issue. But first, let me make a few preliminary
points about such claims. Here�s a couple of questions worth asking,
the next time you hear a claim like this:
1. Is the claim true? Are there, in fact, no neurosurgeons in Illinois
south of Springfield? As far as I can tell, this appears to have been
an accurate claim -- but anyone who spends any time around political
debates knows that the claims one hears sometimes bear little
resemblance to objective reality. So, its worth asking "how do you
know?" The fact that the American Hospital Association issued a
undated [7]fact sheet that says there is one neurosurgeon south of
Springfield, and President Bush gave a [8]speech on January 5, 2005,
stating that there were two neurosurgeons practicing south of
Springfield suggests that some additional fact checking might be in
order.
2. Even if the claim is true, is it framed in a way that is
nonetheless misleading? Might using state borders (no neurosurgeons in
Illinois south of Springfield) to define the issue be problematic,
when demand for medical services does not necessarily respect those
borders? Carbondale, Illinois, where Southern Illinois University
School of Law is located, is 176 miles by car from Springfield, and
107 miles by car from St. Louis. If it turns out there are plenty of
neurosurgeons in St. Louis, should we care (as much, or at all) that
there are no neurosurgeons in Illinois south of Springfield?
3. To what extent is the in-state demand for neurosurgical services
being met by other specialists? This question is not applicable to a
fair chunk of what neurosurgeons do -- particularly in trauma cases --
but it is worth asking about access claims regarding many other
specialties, where the same or substitute services can be performed by
other specialists.
4. How tight is the fit between the remedy and the problem? If we
enact a damages cap, will we get more neurosurgeons south of
Springfield? How many more? Will they be good neurosurgeons? Could we
get too many neurosurgeons south of Springfield?
5. If we are convinced we want more neurosurgeons south of
Springfield, Is a damages cap the best way to do that? Would a direct
subsidy for neurosurgeons willing to locate south of Springfield be
more cost-effective? If we have a fixed amount of $$ to spend on the
problem, is it better spent on subsidizing relocation of
neurosurgeons, or of patients needing neurosurgery (by subsidizing a
system of air ambulances, for example)?
6. What are the other consequences of adopting a damages cap, apart
from the effect on the supply of neurosurgeons south of Springfield?
What will the effect be on other specialties, and the way in which
health care is delivered? What will the effect on patients?
These are the kind of questions that it often makes sense to ask about
policy initiatives -- particularly ones framed by the use of salient
anecdotes, such as "there are no neurosurgeons south of Springfield."
References
1. http://illinoisissues.uis.edu/features/2008mar/medical.html
2. http://www.jg-tc.com/articles/2004/09/03/news/news01.txt
3.
http://www.senatorcullerton.com/Press/pre%202006/Alton%20Telegraph%20-%20Med%20mal%20faces%20crucial%20vote.pdf
4. http://www.house.gov/list/press/il10_kirk/pr040727.html
5. http://www.davidreis.org/issues/doctors.pdf
6.
http://www.trusteemag.com/trusteemag_app/jsp/articledisplay.jsp?dcrpath=TRUSTEEMAG/PubsNewsArticleGen/data/2005/0506TRU_FEA_CoverStory
7. http://www.ihatoday.org/issues/liability/toolkit/facts.html
8. http://www.whitehouse.gov/news/releases/2005/01/20050105-4.html
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