By Jeffrey Barg

Published June 2001

• Malpractice reform gains momentum

• Malpractice liability impact in western Pa.

• Legal obstacles to tort reform in Pa.

• React to this article in the Discussion Forum.

5:30 am - I leave my house and drive to Montgomery Hospital in Norristown. There is little traffic and increasing sunlight as I wind my way west on Conshohocken State Road. I pass what appears to be a hospital on my right, but it is the Montgomery County Human Services Center. It used to be Sacred Heart Hospital, just blocks away from Montgomery Hospital. Two community hospitals in Norristown are no longer sustainable and it is questionable whether or not certain "high risk" medical services will be sustainable at Montgomery Hospital, as I am repeatedly to be reminded during the course of the day.

6:00 am - I arrive at Montgomery Hospital. A group of approximately 20 physicians huddle outside the hospital entrance. Brief orientation is provided by the two primary organizers of the trip: Charles Cutler, M.D., who practices internal medicine across the street from the hospital and chairs the Montgomery County Medical Society (MCMS), and James Holton, MCMS’ executive director.

I sit in the back of the bus with three medical students, two from Temple University and one from MCP-Hahnemann University. I sit next to Steve Agabegi, a third year student at Temple. He came at the recommendation of a family practitioner with whom he is doing a clinical rotation. Agabegi believes that there definitely needs to be a change. The level of malpractice premiums has reached crisis proportions. Doctors are retiring early and doctors from outside the area are unwilling to come here. Although he grew up in King of Prussia and would like to stay here, he will have to think twice because of the horrible practice environment.

6:30 am - I move up a few seats to talk to Estella Graeffe, M.D., a radiation oncologist at Montgomery Hospital, practicing for 19 years. Graeffe is an employed physician who does not directly pay for malpractice insurance. She notes, however, that she still has to earn her keep, meaning that she must produce enough revenue to cover expenses including malpractice insurance. Graeffe has never been sued for malpractice, does not directly pay for coverage, and is not in one of the specialties most severely impacted by premium increases, yet she has made the trip to support her colleagues.

Graeffe decries the degradation of health care caused by high malpractice premiums and managed care. Defensive medicine is the order of the day, with dictating for charts being more important than face-to-face interaction with patients. Doctors see more patients, spending less time with each. Radiologists don’t have time to call patients with results anymore. It used to take four days to do a full work-up; now it takes weeks.

She has seen many doctors leave the area, or retire early, and the difficulty replacing them. Montgomery Hospital has been unable to replace a neurosurgeon for several years. She knows gynecologists who have dropped obstetrics to lower their malpractice premiums. Things might have to deteriorate to the point in which a woman will have to travel to New Jersey or Delaware to deliver her babies before the situation is addressed.

Graeffe predicts that medicine will no longer attract the best and the brightest. She believes that those who enter medicine will not have the all-consuming commitment to medicine that her generation has.

8:00 am - Bus arrives at the Pennsylvania Medical Society (PMS) building in Harrisburg. Almost 200 physicians from Southeastern Pennsylvania congregate for a briefing from PMS officers and staff in preparation for meetings with legislators. Combination pep talk, progress report and lobbying primer. More and more public support has been generated. In-coming media calls have doubled. Meetings are being held with legislators, regulators, insurers and the hospital association. State Senator Robert Thompson of Chester County stands ready to introduce tort reform legislation. Trial lawyers association has been defaming doctors and our cause; citing the upper estimate of the Institute of Medicine’s errors report and charging that doctors are organizing a work stoppage. Don’t get sidetracked by trial bar’s attacks. Be firm, but polite with legislators. Don’t put your fist or fingers in their faces. Shuttle buses to and from the Capitol leave every half-hour until 2 pm. PMS lobbyists are available in the Capitol Rotunda to answer questions.

8:45 am - Back on the Montgomery Hospital bus for the short trip to the Capitol. MCMS’ James Holton has set up meetings with Montgomery County legislators. Don’t forget to put on your white jackets.

I sit next to Ron Clauhs, M.D., an ob-gyn at Chester County Hospital for 19 years. He was sued one time for malpractice during his first 17 years in practice, a case that he won; but four times since then. He settled a recent case in which the venue was shifted from Chester County to Philadelphia. While he would have been comfortable litigating the case in Chester County, where he feels he would have been given a fair shake, the potential for liability is too frightening in Philadelphia.

His practice now is dominated by the imperative to produce the lowest possible liability profile. His C-section rate has gone up dramatically. While he was a pioneer in endoscopic surgery, he will not do any high-tech surgery now. He orders more tests and evaluations.

Clauhs’ malpractice premium will increase by $30,000 as of July 1st. He has applications out in Delaware and New Jersey, and is not sure he will be here in the fall.

9:00 am - Physician buses descend on the Capital. Waves of doctors in white jackets conspicuously wind their way through the Capitol. I follow a group of physicians to a meeting with Rep. Lita Cohen, who represents the northern half of Lower Merion, Conshohocken and Whitemarsh. Cohen’s office is packed with physicians, with most overflowing into an outer-office and out into the hallway about as far as the eye can see. The meeting, as heard from the outer-office, does not appear to be going well. Physicians in the office are increasingly frustrated with Cohen’s lack of understanding of the issue, her platitudes and her unwillingness to commit. Cohen says she can’t understand why family practice doctors pay the same malpractice premiums as orthopedic surgeons. Cohen makes the mistake of mentioning that she is an attorney, which she tries to mitigate by saying that she was never a trial lawyer. Physicians in the outer-office repeatedly ask Cohen to come out into the hall to address everyone, but she is unwilling to do so. I, along with other physicians, decide to move on to greener pastures.

9:45 am - A more civilized meeting is taking place in state Sen. Richard Tilghman’s office. Tilghman represents southeastern Montgomery County. Approximately 15 physicians attend the meeting at first with another handful filtering in during the meeting. The veteran legislator listens to different portrayals of the problem, briefly displays sympathy and repeats the mantra that the medical society needs to put a piece of legislation on the table. He has worked closely with the medical society. The most heated moment arises when Bryn Mawr surgeon Anthony Coletta, M.D., recounts the meeting with Lita Cohen, in which Cohen said she felt insulted by physicians wearing white coats and asked them to take them off. Tilghman steers clear of the incident and confides that, while he is not a lawyer, he was dumbfounded that the state Supreme Court overturned tort reforms several years ago without them coming up in a case.

10:15 am - Meeting with Sen. Stewart Greenleaf, who represents northeastern Montgomery County. Greenleaf, chairman of the Senate Judiciary Committee, recently held hearings in Abington on medical malpractice and is eager to share his thoughts on the subject. There have been a lot of different problems limiting progress on the issue in the past, explains Greenleaf. The Pennsylvania Supreme Court overturned tort reforms passed in 1996 because the justices felt that the reforms encroached on their territory. The medical profession has not always been united. As brought up by Sen. Robert Jubelirer during a recent Republican caucus meeting, the PMS had agreed to a reform package eight years ago, which was later rejected by PMS membership. Another problem that came up in caucus was the perception that this not a statewide crisis. You must take an incremental approach sometimes and you must have someone up here working on it on a daily basis. It’s important to be active in the upcoming judicial elections; the trial lawyers always are. Greenleaf will try to move a resolution out of his committee today calling on the Supreme Court to reinstate the tort reforms that they struck down.

Greenleaf believes that one promising approach to solve the problem is to take away much of the monetary incentive from malpractice litigation. Litigation tends to follow the money. If you abolish the CAT Fund and remove requirements for physicians to self-insure, law firms might think twice before they invest $100,000 in pursuing a malpractice case. Greenleaf has introduced legislation to remove physicians’ self-insurance requirements.

11:00 am - Back on the bus for the trip back to Montgomery Hospital. Charles Cutler, M.D., organizer of the trip, has office hours at 1:00. Cutler is a general internist in practice for 22 years. He sold his practice to the University of Pennsylvania Health System in 1994 and has been employed by them ever since. He chairs the MCMS as well as the PMS’ Communications Committee.

Cutler explained that Tuesdays in Harrisburg are a collaboration between the PMS, county medical societies and hospital medical staffs. PMS sets the statewide strategy, which gets implemented at the county level by county medical societies and hospital medical staffs. In this case, Montgomery Hospital chartered a bus and MCMS set up appointments with Montgomery County legislators.

Cutler feels that the day is a success. Participating physicians were educated and empowered by seeing the sort of impact they can have. It is great for legislators such as Lita Cohen to have 100 influential constituents knocking on her door. Each of these constituent doctors has family and office staff, whose votes he/she can influence. This is how to influence legislators. The lobbying would have been more effective, however, if there were an actual piece of legislation to lobby for.

Cutler believes that there is much more work to be done. He instructs physicians on the bus to talk to their colleagues to get them involved. He plans on making a presentation at the next Montgomery Hospital medical staff meeting. Once and possibly future Congressional candidate Melissa Brown, M.N., M.D., emphasizes the need to contribute more money to their political action committee in order to be effective in Harrisburg.