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The President's Report
Malpractice Reform: Expanding An Idea That Works => Fall 2003
Robert W. Yelverton, M.D.
Over my thirty years as a Florida based Obstetrician/Gynecologist, I have had two major professional interests outside of clinical practice; quality improvement in health care and reformation of the Florida system of legal torts and its impact on the practice of medicine. Developing systems of quality improvement for both measuring and enhancing the quality of health care provided to our patients was extremely rewarding. Working with ACOG, FOGS, and local hospitals on improving the quality of care was not only fun, but extremely satisfying and resulted in measurable improvement.
On the other hand, when I worked in the arena of tort reform I was faced with an entirely different set of circumstances. Tort reform, a complex and controversial subject, required working against opponents of reform whose motivations, while at times honest and well meaning, were too frequently characterized by hostility, greed, and politics. The end result, usually negligible improvement in the broken system of torts (as exemplified by the minimal successes seen in our efforts in 2003), left me with little sense of accomplishment.
Without question, as unpleasant as it is the medical profession must continue to work toward meaningful tort reform through the legislative process. While the Florida OB/GYN Society fully supports the Florida Medical Association in its effort toward a constitutional amendment limiting legal contingency fees in tort actions, it is my feeling that we must look to the legislature again for added reform.
I am requesting the Executive Committee of the Florida OB/GYN Society to consider a legislative platform for 2004 that expands the scope of the Neurological Injury Compensation Association. Without a doubt, the best piece of legislation under the label of tort reform ever enacted by the Florida Legislature was the 1987 Florida Birth Related Neurological Injury Compensation Association Act codified in Chapter 88-1 of The Laws of Florida. This Act was the result of tireless efforts by the Academic Task Force for the Review of Insurance and Tort Systems. The Task Force, created by the 1986 Florida Legislature with the urging by FOGS, recommended that the legislature create a no-fault plan of compensation for catastrophic birth related neurological injuries. Unlike the 2003 Florida Legislature, which essentially ignored the recommendations of the Academic Task Force established by Governor Bush, the 1988 Legislature resisted extreme lobbying pressure from the trial bar and passed this Act.
By any standard of measure, NICA has been very successful in accomplishing what the Association was set up to do. Initially assaulted by the trial bar and downplayed by some obstetricians as being too narrow in its scope, NICA has survived multiple attacks by the Trial Bar, been upheld by the Florida Supreme Court, and has now become generally accepted as a standard of no-fault injury compensation that is admired throughout the nation. In my opinion, NICA is currently managed by an extremely qualified Executive Director and applied effectively by dedicated and energetic legal counsel with excellent oversight by a diligent Board. Children injured as a result of the birth process have been adequately compensated by a very fair system administrated effectively and compassionately by NICA, while virtually millions of dollars in excessive settlements or runaway jury awards have been prevented by the system.
For the reasons outlined above, I am requesting that the Executive Committee of FOGS approve a package of legislative changes that includes expansion of NICA. The specific items of expansion will, of course, depend on a cost analysis of NICA revenues and reserves. Various methods of NICA expansion are being considered, including coverage of brachial plexus injuries, all serious neurological injuries with or without mental deficiency, or reduction of accepted birth weight qualification to 2000 grams.
At this time, my proposal will include the following:
Expansion of current NICA laws to include brachial plexus injuries.
Reason- Permanent brachial plexus injuries are usually true no-fault situations, often result in serious injury, and result in lawsuits virtually 100% of the time.
Require all insurance companies underwriting medical professional liability insurance in the State of Florida to either actuarially adjust rates for NICA participants, or give a flat discount to NICA participants to cover the NICA fee.
Reason- With one exception, insurance companies have, without explanation, refused to adjust rates for NICA participants.
Generate the needed revenue by reassessing the current exemption from assessment of multiple Florida hospitals.
Reason- Currently, 27 hospitals in the State of Florida are exempted from any NICA assessment. The remainder of the hospitals pay $50.00 per live birth and are allowed to exempt only Medicaid deliveries.
Revise the patient notification requirements to allow notification of NICA participation by posting a notice in a prominent location in physician’s office.
Reason- Failure to obtain proper notice of participation is a frequent cause for denial of NICA coverage by the courts. A posted notice is all that is required by law for doctors without professional liability coverage.
Hopefully, if the above changes in NICA are enacted, virtually 100% of the insured physicians in the state of Florida will be covered by NICA. Those physicians who do not have professional liability insurance in the tri-county southern portion of the state will, more likely than not, have their NICA fees paid by hospital systems in accordance with the 2004 legislative changes. Florida hospitals should support such legislation in that their greatest concern currently is that they are not covered by NICA unless the physicians are covered as well.
I am certain that the Florida Trial Bar will vigorously oppose such legislation. So be it. Please write, phone, or email your opinions.