By Christopher Guadagnino, Ph.D.
Last month’s Code Blue Emergency protest marked a turning point for Pa. physician activism. Physicians had held rallies in Harrisburg before, but never of this magnitude, in these many places across the state, with this degree of unity across regions and specialties, and with these tactics. Front page and prime time media coverage depicted widespread physician office closures — which substituted Sunday-type coverage for weekday coverage — as “walkouts,” “strikes” and “work stoppages,” and gave physicians’ medical liability reform agenda a higher profile than has ever before been seen in this state.
The protest overwhelmingly succeeded in achieving its primary goal of publicity: educating the public about tort reform, about why their physicians are clamoring for caps on noneconomic damages and attorney fees, and providing a glimpse at what will happen to their access to medical care if reform does not come soon. Physicians report that the protest achieved this goal with minimal disruption to patient care, while generating sympathetic response and support from the vast majority of their patients, even those who were inconvenienced. Reaction from the business community appears to be positive, while other powerful groups — such as the Pennsylvania Trial Lawyers Association and AARP of Pennsylvania — have been critical.
The protest’s impact on legislators is less clear. At press time, many legislators were reportedly waiting for Gov. Rendell — who openly criticized the goals and tactics of the protest and called physicians “obsessed” with caps — to issue his latest set of legislative proposals. Pa.’s Republican House and Senate leaders supported the goals of the protest, while at least one Democrat spoke supportively at one of the rallies and others are supporting similar or parallel reform efforts.
Over 160 organizations across Pa. signed on to the “We Are United Pledge Document,” posted on the Pennsylvania Medical Society’s (PMS) website, including county medical societies, medical specialty societies, hospital medical staffs and various physician groups. The immediate goals articulated in the document include:
• Tort reform, including $250,000 caps on noneconomic awards, limits on attorneys’ contingency fees and limits on delay damages.
• Financial relief, including forgiveness of the full 2003 MCARE Fund payment for all doctors, removal of MCARE’s multi-billion-dollar unfunded liability, and reduced levels or outright elimination of required liability coverage.
The long-term goals set forth in the document include:
• A sustainable solution that provides timely and fair compensation for injured patients, including a physician-directed study by September 2003 of what will actually work and a demonstration project by December 2005.
• Streamlined and effective quality and patient safety processes that reduce the risk of error, address the root cause of systems errors and professional errors, reduce or eliminate the current atmosphere of secrecy and fear, take medical errors out of the adversarial system and put them into a true scientific framework, and substitute effective quality and patient safety programs for the current morass of expensive and intrusive rules.
To publicize these goals, thousands of physicians – both primary care and higher risk specialties – attended large rallies in King of Prussia, Philadelphia, Harrisburg and Pittsburgh, and smaller rallies throughout the state, between April 30 and May 6 – jointly organized by the Politically Active Physicians Association (PAPA), the PMS and county medical societies.
Prominent Republican officials rallied with physicians, including U.S. Congressman James Greenwood (R-Pa.), Pa. House of Representatives Speaker John Perzel (R-Philadelphia) and Pa. Senate Majority Whip Jeffrey Piccola (R-Dauphin), voicing support for caps on noneconomic malpractice awards and heaping criticism on Gov. Rendell. Democratic Pa. Sen. Connie Williams (D-Montgomery/Delaware) also rallied with physicians in support of noneconomic damage caps, albeit only for medical malpractice instead of all types of lawsuits.
The Pennsylvania Orthopaedic Society, which had signed on to the We Are United Pledge Document, organized its first-ever protest rally, according to the society’s Executive Director Kathy DeWittie. Physicians and Pa. lawmakers gathered in Philadelphia’s Love Park in order to raise pubic awareness that the preservation of patient care is at stake in Pa. because of the state’s malpractice crisis, which is preventing recruitment of young, high-risk specialists, DeWittie notes.
Physicians also took to the streets in protest. More than 100 Delaware County doctors, for example, positioned themselves on four corners of a busy intersection during a morning commute, waving the American flag and tort reform placards while shouting, “We Need Caps!” and “Tort Reform Now!”
At least one physician engaged in a form of civil disobedience. An ob/gyn from Altoona climbed onto a Pennsylvania Trial Lawyers Association-sponsored billboard that announced one of ten ways to improve Pennsylvania’s health, changing the billboard’s message from “Regulate insurance company greed” to “Regulate malpractice lawyers’ greed,” according to the Pittsburgh Post-Gazette. Clad in tie and lab coat, the physician sat in a lawn chair next to the billboard until attracting the attention of television and newspaper photographers.
Office Closure Tactics
In what seems to have attracted the most publicity, many physicians across the state closed their offices and canceled office visits, nonelective surgeries and other routine care, while attending to hospital rounds and emergency cases.
Physicians maintain that the move was not an actual work stoppage, but a demonstration of their First Amendment rights. “We didn’t try to inconvenience patients as much as make them aware of the severity of the problem – that, when doctors are forced to leave, no one can accuse us of not trying our best to let the public know that this state is in a medical crisis,” says PMS President Edward H. Dench, Jr., M.D. Since the central goal was not to disrupt patient care, but to galvanize public pressure on legislators for further reform, says Dench, the symbolism of office rescheduling was enough to “make sure people can’t make the statement, ‘I didn’t know it was that bad.’”
Some members of PAPA wanted to do it the “California way,” in which massive numbers of doctors back in the 1970s completely suspended all of their care for 26 days until the legislature passed the MICRA legislation, including $250,000 caps on noneconomic damage awards, says Anthony Coletta, M.D., PAPA’s statewide coordinator. “There were much more radical discussions,” he notes, “But we decided against an outright office closure. We are not interested in abandoning our patients. Our goal was to get the final step – caps – out in front of the legislators.”
The action was deliberately framed as an expression of First Amendment rights, says Dench, to pre-empt what happened in response to a similar protest by New Jersey physicians a few months ago: trial lawyers in that state had approached the FTC and accused physicians of violating antitrust laws by engaging in a concerted work action.
The PMS took steps to ensure that proper patient coverage was available during the protest week. On its Code Blue Central website, it posted material offering individual physicians specific guidelines for ensuring that a safety net was maintained during the protest, such as establishing a Sunday hours template for availability, arranging emergency coverage with specialists, reviewing on-call responsibilities at hospitals, phasing-down pre-protest surgery and other care requiring follow-up consistent with accepted standards of care, and addressing contractual and managed care obligations.
To further demonstrate physician concern for patients, the PMS orchestrated donations of thousands of dollars in medical supplies, with collection points at the Harrisburg rally, to be distributed to Third-World countries.
Some press accounts still called the actions work stoppages and strikes. Hundreds of Pittsburgh-area doctors “walked off their jobs,” as the Pittsburgh Tribune-Review characterized it, to attend a late-April rally in Station Square on the South Side, where Gov. Rendell was speaking at the time to the Greater Pittsburgh Chamber of Commerce. Participating doctors came from the region’s major hospitals, including St. Clair, Magee-Womens, UPMC Presbyterian, Mercy and Allegheny General.
Impact on Patients
Some physicians closed their offices for a single day. Solo internist Kenneth Rudolph, M.D., closed his office on May 9 to attend a rally in Scranton that was in part organized by the Lackawanna County Medical Society, along with PAPA. While he usually sees about 20 patients per day, no patients were scheduled for office appointments that day, although Rudolph says he did hospital rounds and was prepared to receive emergency calls. According to a survey by his county medical society, about half of the physicians in his region had planned to do the same as he did.
In his office waiting room he placed literature provided by the PMS and AMA outlining the danger to patient care posed by skyrocketing malpractice insurance premiums and advocating specific remedies, including caps on noneconomic damages. Rudolph says that several of his patients during office visits have since been asking him, “How is the malpractice premium problem going?” and that no one has voiced dissent with physicians’ goals.
Rudolph recently applied for and received a license to practice medicine in Virginia as a “Plan B,” in case his malpractice insurer raises rates to an unaffordable level or decides not to renew his policy.
Some physicians chose to make a bolder statement by closing their offices for the entire Code Blue Emergency week. Patients who called the office of George Isajiw, M.D., for an appointment during that week were told that coverage was just like on a Sunday, that only emergency calls would be taken, and that this was a demonstration of what will happen if something doesn’t happen to mitigate the malpractice crisis. A solo internist in Delaware Co., Isajiw says he did hospital rounds and saw ten patients as emergency cases that week. Some 100 patients who had their appointments cancelled that week – plus another 100 who called for appointments – were each mailed a packet of PMS-provided literature and a letter from Isajiw explaining the malpractice problem and why physicians are calling for caps on noneconomic damages.
Some patients seeking prescription refills that week were given only a five-day refill and told, “This is a demonstration of how much more of an inconvenience it’s going to be when more physicians leave and there are fewer doctors to take care of every patient. Convenience is going to be the first casualty of decreasing access,” says Isajiw, adding that his patients understood that this, and the office closure, were part of the statewide physician demonstration – and that he heard no serious gripes.
Immediately following the protest week, Isajiw began presenting all of his patients with a letter announcing a voluntary $1 office surcharge to make up for increases in his malpractice premiums, up to a maximum of $25 per patient per year, to be rebated if he collects more than the amount that his premiums increase. He notes that his malpractice insurance increased by $4,000 over the last two years and has changed from an occurrence to a claims-made policy. “We’re not paying an awful lot, but I can’t raise my fees and it’s clear that it’s going up at least that much next year,” he says. Because the patient surcharge is voluntary, Isajiw says, it does not violate his health insurer contract prohibiting additional patient fees.
Coletta’s entire 11-surgeon practice closed for the whole week, performing only emergency cases and affecting surgeries at Bryn Mawr, Paoli and Chester County hospitals. Coletta says his practice has heard from thousands of patients, all but the smallest minority of whom – one or two percent – have offered positive feedback, and some of whom are sending letters supportive of physician goals to their legislators. Coletta and several of his associates also spoke at civic groups and town meetings that week to lay out physicians’ tort reform objectives.
Employed physicians also participated in the protests. Although he did not have the authority to close his practice, Charles Cutler, M.D., says he was offered the opportunity to use vacation time to participate. Part of a two-physician internal medicine practice owned by University of Pennsylvania’s Clinical Care Associates (CCA), Cutler was out of his Montgomery County office for a whole day, for which he did not schedule patients, while his associate remained in the office full time to pick up emergency calls and walk-ins. Cutler’s practice removed all magazines from its patient waiting room and replaced them with leaflets, posters and postcards related to the Code Blue Emergency physician agenda.
Cutler says he decided to become involved in the protest because the malpractice crisis is making it increasingly difficult to refer his patients in a timely way to specialists, particularly obstetricians, neurosurgeons and busy orthopedic practices. Although his employer pays for his malpractice insurance, premium increases are already filtering back to him because his salary is tied to the rising overhead of his employer, the malpractice insurance component of which he says is increasing by 20 percent year.
Cutler says he has received many unsolicited comments from his patients indicating that they know there is a problem, that there was a physician protest, and that they are worried about losing their physicians, especially specialists. “More patients in the last week have said something to me than in the last six months or year,” Cutler says, adding that his one regret is that he has not had enough time to sit down individually which each patient to explain the problem and the proposed solutions.
Charles Orellana, M.D., also a CCA physician and part of a three-physician internal medicine practice in Montgomery County, said his office remained open, as per Penn’s mandate, but did not see new patients for the whole week, holding off on scheduling routine follow-up visits or physicals. His practice also equipped its waiting room with malpractice crisis-related material, including a display table, clippings and a letter template that patients could send to legislators. Orellana says his practice collected and mailed some 250 letters to Pa. legislators that patients signed while in the office, calling for caps on noneconomic damages.
Some physicians did not agree with the tactics used during the protest week. Although he says he applauds physicians who feel otherwise, Robert Reinecke, M.D., an ophthalmologist at Philadelphia’s Wills Eye Hospital, says he does not like to mix politics and practice, and that disagreement risks putting up a modest barrier between him and the care he renders to a patient. He was surprised that patients did not seem to disagree with physicians’ goals in this protest, and was impressed at their level of knowledge about malpractice issues – being asked specific questions about it even though his practice remained open during the protest week and did not distribute malpractice-related literature.
Impact on Legislators
“I think the protests were a major public relations blunder on the part of physicians,” says PaTLA Legislative Counsel Mark Phenicie, who maintains that the activities were not well-received by legislators, many of whom he says found it offensive “for physicians to hold patients hostage to make a political point.” Phenicie is skeptical that physicians will be successful in obtaining legislation because lawmakers are growing weary of the malpractice issue, particularly in light of three significant bills passed last year to address the crisis: the MCARE Act, joint and several liability reform, and venue reform.
Such negative appraisals amount to bravado by those who believe the protests did not sway anybody in the General Assembly, says Pa. Senate Majority Whip Jeffrey Piccola, co-sponsor of SB 50, which would amend the state constitution to allow caps on noneconomic damages for all tort actions. What will sway legislators is increasing public response on the issue, he says, noting that his office has had a greater volume of calls on the malpractice issue since the protests, coming from a broader base of the public than in the past – not just the medical community.
Piccola says he is seeing increasing support among his colleagues for noneconomic damage caps and lawyer fee restrictions. “There are nagging questions of crisis out there that are going unresolved,” says Piccola. “As long as the awareness continues and the crisis does not abate, at some point we’re going to have to take some votes on some of these critical issues – unlike the governor’s task force, where he instructed them not to vote.” Piccola says he does not know that there are any compromises that will satisfy both sides this time, unlike those made on tort reform measures in the past.
Piccola also believes that, if an attorney fee contingency fee limit can be passed by the legislature, the chance of it prevailing is strengthened by the recent election of Judge J. Michael Eakin to the Pa. Supreme Court because attorney fee regulation has traditionally been the province of the court’s rulemaking authority. When last year’s venue statute was passed, the Supreme Court, with Eakin as a member, promulgated a rule that supported the statutory language, Piccola notes.
Sen. Connie Williams, one of the few Democrats who has been openly supportive of physicians during the protest, says she is getting emails from constituents supporting physicians, “more than I’ve ever gotten from anybody else about any other issue.”
Williams supports limiting attorney contingency fees and is sponsoring a bill – which currently has three Democratic cosponsors – that would allow for a $250,000 cap on noneconomic damages for malpractice cases only. She believes that such a cap on all tort actions would not have enough support in the Senate to pass, and that damages should not be capped for product liability and other types of tort, in order to maintain punitive leverage against irresponsible corporate behavior, which she says would not be an issue in malpractice cases.
“We need to have 26 votes for a bill to move out of the Senate,” says Williams. “There are 29 Republicans, and some of them do not support tort reform.” As was the case for Pa.’s recent joint and several liability reform legislation, says Williams, there were enough Democrats supporting it that it ultimately won much broader support as more legislators signed on once they thought it had a chance to pass. “That could happen again with a limited tort bill,” Williams believes, although she acknowledges that the Democratic Caucus does not support caps and is not talking about it. She expects such a discussion to come again in June and she hopes that caps will take a front row seat, along with the budget discussion.
In the House, Majority Speaker John Perzel is a vocal supporter of caps and appeared as a speaker at one of the physician rallies. House Republicans have introduced the major liability reform legislation, including bills limiting attorney fees, reducing or abolishing mandatory medical liability insurance, and amending the state constitution to allow caps on noneconomic damages.
There is a feeling among some House members that, while the physician protests were effective as a political dynamic, their limited focus on caps was puzzling, given that caps are years away from providing any relief, if at all, notes Rep. Daylin Leach (D-Montgomery). Leach has introduced three bills of his own, each with bipartisan support, offering alternative reforms such compulsory arbitration for malpractice cases, elimination of punitive damages, limiting malpractice insurance premium increases, and creating a three-region statewide malpractice court with incentives for plaintiffs to accept voluntary damage caps.
Battle Lines Drawn
“The greatest political leverage that physicians presently have is the number of patients that we contact every day,” says Coletta. “Our waiting rooms are going to be transformed into political areas where we educate patients about which legislators are voting against health care in Pa.,” he adds.
Physicians statewide have collected some 10,000 petitions signed by patients and expressing support for their physicians, and are mailing them to their legislators, says PAPA President James Tayoun, D.O. “There’s not a patient in Pa. who doesn’t understand there’s a problem now. Legislators can’t say there’s not a crisis out there,” he notes, adding that PAPA plans to survey every Pa. legislator by the end of May to determine who does and does not support caps on noneconomic damages.
Physicians’ tort reform agenda coincides with that of the business community. In a recent member survey by SMC Business Councils, which represents 5,000 small businesses in southwestern Pa., the majority of respondents identified medical malpractice as “the most egregious overcharge embedded in their health insurance costs,” says Cliff Shannon, the council’s president. The Code Blue physician protest has probably sharpened this belief, he adds.
Medical malpractice tort reform remains one of SMC Business Council’s top three issues when lobbying legislators, and Shannon says – based on a recent meeting he attended with other organizations – it remains on the short list of priorities for the Philadelphia and Pittsburgh Chambers of Commerce, and for other organizations of manufacturers from around the state representing small businesses. “Whatever momentum the doctors and physician organizations have helped shore up is good for us from the health care affordability standpoint, and helps advance the overall process of tort reform,” says Shannon.
AARP Pennsylvania does not share that tort reform agenda, and characterizes the Pa. physician “walkout” as a misguided effort that put consumers who need health care at risk and could have compromised care for some seniors, especially the frail elderly, according to spokesperson Angela Foreshaw. AARP believes the debate needs to move beyond caps on jury awards, which it says neither helps injured people get fair compensation nor reduces medical errors. Instead, AARP would support the testing of a nonjudicial, no-fault alternative compensation system, such as the demonstration project proposals offered by the Institute of Medicine last year, says Foreshaw, noting that few legislators have expressed an interest in such an alternative.
No tort reform legislation can pass in Pa. unless the trial lawyers allow it, and physicians do not have the political clout of the trial lawyers, Isajiw was once told by his Pa. representative. Nor do physicians have an organized campaign of paid commercials to counteract that of the trial lawyers, he adds.
The legal profession in Pa. also outspends the medical profession by a ten-to-one margin on political contributions. According to a study by Pennsylvanians for Effective Government, a pro-business group, the combined giving of all identifiable contributors from the legal profession – law firms, attorneys, paralegals – came to $17.9 million in the last two-year election cycle, while that of the health care profession – nurses, dentists, doctors, surgeons, specialists – came to $1.8 million, the Philadelphia Daily News reported. A review of special interest PACs shows that Pennsylvania Medical Society ranks 16th in giving, with $416,107 in the last two-year election cycle, while trial lawyers placed third, with $1,189,835, behind only teachers and a business PAC, the Daily News noted.
Almost every week since February, PaTLA has been mailing each state lawmaker a packet of information about a different medical malpractice victim, along with photographs of their injuries, in a campaign to counteract the movement to cap noneconomic damage awards. “More will follow,” says Phenicie. “This is not some illusory issue for victims. State legislators should not limit what juries do.”
While opposing any form of jury award caps, PaTLA supports some form of a bill by Rep. Tom Tangretti (D-Hempfield), which would offer Pa. physicians affordable malpractice insurance from a state-operated fund instead of from private insurers, says Phenicie. The PMS opposes Tangretti’s measure, maintaining that it will face the same financial problems as the former CAT Fund, which levied high surcharges on physicians to cover its pay-as-you-go claims costs.
In a move that could potentially split physician unity by specialty, PaTLA had an amendment tacked on to HB 158 to give the insurance commissioner sole discretion to require malpractice insurers to place all physicians regardless of specialty or risk into as few as one insurance rating class and no more than ten rating classes, instead of the existing 16 medical specialty rate classifications.
The move was opposed by the Pa. Academy of Family Physicians (PAFP), the Pa. Chapter of the American Academy of Pediatrics and the Pa. College of Internal Medicine, which sent a joint letter to lawmakers and Governor Rendell asking them to oppose the proposal. Noting that physicians currently pay different malpractice insurance rates based primarily on specialty, practice location and liability history, PAFP said the proposal to collapse rates would only worsen Pa.’s medical liability crisis, given a declining pool of well-trained primary care physicians and family physicians to serve Pa.’s communities. PAFP says that physicians should be on guard against this rate collapsing language cropping up in other bills as amendments, particularly at the end of a legislative session.
Going forward, physicians hope to build on the alliances and broad-based public support they have secured through the Code Blue protest activities. “We don’t have $10 million to combat the campaign that’s being mounted against reform. But we do have, on an immediate basis, the ability to contact huge numbers of citizens through our offices, and that’s what we intend to do,” says Coletta. “With a larger membership and the right relationships in Harrisburg, we expect to have a far more visible presence so that, should reform efforts get bogged down again and we need to be more radical in our activism,” he adds, “we’re going to be in a much stronger position to take on that kind of risk.”