Gerald O'Malley, DO: A rant on malpractice insurance

The state government of Pennsylvania is a corrupt failure. Over 40 different hospitals, health clinics, and surgical centers have closed in the last 10 years, all under Governor Rendell’s watch. I’m tired of reading about all the excuses. I’m not listening anymore.

My state representative from the 61st congressional district is a very nice woman. Her name is Kate Harper. She invited me to a constituents breakfast several years ago at which I was the youngest attendant (it was the social event of the week for the area retirement communities).
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Kate seemed earnest when talking about her passions like environmental legislation, and she was insistent that her votes supported doctors. But she couldn’t resist relating a grotesque story about a drunken OB/GYN that she had heard second- or third-hand (Kate is a Republican and a lawyer, so she seems to have an internal struggle with that existential inconsistency). We began an e-mail correspondence and Kate was kind enough to speak to my residents on the issue of medical malpractice. She even brought another lawyer with her, and the two of them put the fear of God into the residents with a mock med-mal trial. One resident participant, after being cross-examined during the mock trial, said, “I have never had anyone speak to me like that,” and he was visibly shaken. (Having been a defendant in two malpractice trials, I have been talked to “like that” for real).

Kate sent out an electronic update/newsletter recently. The newsletter described the process by which the Pennsylvania state budget was recently passed and detailed what will in all likelihood be the final nail in the coffin of our attempt to keep any resident physicians in this state.

This year’s budget approved the use of MCARE (Medical Care and Availability and Reduction of Error) funds for general purposes, rather than for what it was originally created for — settling medical malpractice lawsuits and compensating victims of medical malpractice (and their lawyers). General purposes include police overtime for the Phillies tickertape parade, trash collection, and libraries, among other things.

MCARE is essentially an insurance fund (run by the state) that charges an annual assessment on physicians, hospitals, nurse midwives, podiatrists, and nursing homes to pay current claims and operating expenses. In 2008, the fund paid out claims totaling $174 million.

Since 2003, high-risk specialties such as neurosurgeons, OB/GYNS, and emergency physicians were allowed to apply for an “abatement,” which eliminated their contribution to the MCARE fund. The abatement program allowed doctors that don’t practice in high-risk specialties to reduce their contribution by 50 percent (creating an adversarial situation among specialties). The MCARE abatement program was eliminated last year. The MCARE fund itself ended this year so that all physicians will be forced to obtain insurance privately at exorbitant rates (the average malpractice premiums for an ED physician in PA is $60,000 per year higher than in neighboring Delaware).

So the governor of Pennsylvania has collected money from doctors specifically for the purposes of paying lawyers that have sued doctors and now they want to take $808 million of the money that the doctors have already paid into this account and use it to pay for other things.

In addition, since the MCARE fund only covers expenses from year-to-year, eliminating MCARE and using the existing funds to pay for parks landscaping and school lunches creates an unfunded mandate for lawsuits and settlements currently in progress that equals $1.7 billion. Who will get stuck with that bill?

Never mind keeping resident physicians in Pennsylvania – I can’t afford to live here anymore.

Gerald O'Malley, DO, is the director of research in the largest, busiest emergency department in Philadelphia and an associate professor of emergency medicine at Thomas Jefferson University Hospital. He’s also the son of a NYC cop, die-hard Yankees fan, and a regular contributor to Practice Notes.