Reply #16: Here's a letter I wrote to my local Assemblyman and State Senator

[NNguyenMD]

Senator David Valesky Represents Oneida and Onondaga county in Upstate NY. This was also sent to Assemblymen Joan Christensen and Bill Magnerelli. I sent this letter after having attended "Lobbying day" with the Medical Society of New York. And organization that I have withdrawn my membership from.

Dear Senator Valesky:

On the afternoon of Tuesday March 14, 2005 I had the honor of meeting one of your aides, as a member of the Onondaga County Medical Society and the Medical Society of the State of New York. The context of that meeting involved a number of vital issues, but emphasized one that I feel was greatly misrepresented by this society of which I am a paying member. That issue was of course Medical Liability Reform, and if you remember became the focus of your discussion with the representatives of that lobbying group.
I strongly feel that this interest group grossly misrepresented this issue that has already been thoroughly investigated by the United States General Accounting Office in two major reports released in 2003 addressing the issue of “defensive medicine”, and what the GAO believes to be the real causes of the upsurge in medical malpractice premiums on physicians. I have enclosed both copies of the GAO reports and refer you to page one of GAO-03-836 Medical Malpractice: Implications of Rising Premiums on Access to Health Care, in its investigation of five “crisis states” listed by the American Medical Association the reports plainly says in the first paragraph,
In the five states with reported problems however, GAO also determined that many of the reported provider actions were not substantiated or did not affect access to health care on a widespread basis. For example, although some physicians reported reducing certain services they consider to be high risk in terms of potential litigation, such as spinal surgeries and mammograms, GAO did not find access to these services widely affected, based on a review of Medicare data and contacts with providers that have reportedly been affected.
Also mentioned in this GAO report was the lack of validity to surveys and studies released by the AMA and insurance lobby. I refer you to paragraph two of page one where it says
Physicans reportedly practice defensive medicine in certain clinical situations, thereby contributing to health care costs; however, the overall prevalence and costs of such practices have not been reliably measured. Studies designed to measure physicans’ defensive medicine practices examined physician behavior in specific clinical situation, such as treating elderly Medicare patients with certain heart conditions. Given their limited scope, the study results cannot be generalized to estimate the extent and cost of defensive medicine practices across the health care system.
With regard to the issue of capping the amount of punitive damages patients can pursue in malpractice claims against physicians, the same GAO report did acknowledge that growth of premium rates slowed in states that had already placed caps on punitive damages; however given the vast differences in tort laws from state to state, the GAO concludes on page one paragraph three states that the, “GAO could not determine the extent to which differences in premiums and claims payments across states were caused by tort reform laws or other factors that influences such differences.”
Additionally, the Weiss Rating, an insurance industry rating-firm/watchdog determined in their June 2, 2003 study titled Medical Malpractice Caps: The Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout Levels, and Availability of Coverage, they conclude that caps have had no significant impact on the lowering of medical malpractice premiums. The AMA vehemently refuted this study; however their rebuttals can be easily debunked if one would simply read the Weiss report. For example:
AMA Rebuttal: The Weiss report bases its conclusions on median malpractice premiums aggregated across specialties and jurisdictions, which obscures the differences between high-risk and low risk medical specialties and legal venues.
Weiss: Actually if you look to page 7 of the Weiss report it states that “Using 1991 to 2002 data published by the Medical Liability Monitor, we examined the median med mal premiums paid by doctors in three high risk specialties- internal medicine, general surgery, and OB/GYN.” The truth is the Weiss report studied the medians in the specialties with the sharpest rise in med mal premiums, versus merely lumping the medians across all specialties as falsely implicated by the AMA. Here’s another example
AMA Rebuttal: The study falsely claims that insurance carriers are raising premiums to compensate for stock market losses. Medical liability insurers typically have less than 10 percent of their investments in the stock market and more than 80 percent of investments in the bond market. Virtually no medical liability insurance company has experienced net investment losses since 1997.
Weiss and GAO: This is actually a distortion by the AMA of how dependent premiums are on the health of the economy. I refer you to page 26 of GAO-03-702 where the authors of the reports formulated that for every dollar lost in interest on bond investments by the insurance carriers, premiums would have to be increased by four dollars to make up that loss in investment revenue. So although it is true that the insurance industry is heavily invested in bonds versus stocks, and does not lose on its investment, its revenue is highly dependent on the health of the economy and a weak economy will result in a lower bond return and significantly higher premiums.
In reviewing the issue of the causes of medical malpractice premium increases both the GAO and the National Association of Insurance Commissioners agree that more data is needed before any executive action should be taken. I refer you to page one of GAO-03-702 Medical malpractice Insurance: Multiple Factors Have Contributed to Increased Premium Rates left column second paragraph down,
GAO is not recommending executive action. However, to further the understanding of conditions in current and future medical malpractice markets, Congress may wish to consider encouraging the National Association of Insurance Commissioners and state insurance regulators to identify and collect additional, mutually beneficial data necessary for evaluating the medical malpractice insurance market.
Senator Valesky I implore you to reconsider the unsubstantiated scare tactics made by both MSSNY and the Insurance lobby, and direct your staff to look further into the issue before you decide what position is best for the patients of Onondaga County. By definition, punitive damages are intended to be deterrents for physician negligence, and are one of the few protections ordinary citizens have in a healthcare industry already in disarray. As a fellow Democrat, we should both recognize the great value of consumer protections, limiting the amount of punitive damages to the paltry sum of $250,000 even in cases of catastrophic events or death would be a tragic blow to consumer rights and the very constituents whom you represent. I write this letter fully aware that I am speaking against the presumed financial interest of my profession; however I feel that this is an important issue that should not be dictated by the overpowering seduction of dollars and cents, but on the very lives that will be most affected. I cannot in good conscience support my medical society, and thus seek your leadership in serving the greater interests of the people of New York.