Thursday, July 17, 2008

Malpractice rates hinder practitioners

By Winthrop Quigley
Journal Staff Writer
       The people who deliver many of New Mexico's babies have struggled for some time to pay for medical malpractice insurance. They titled a recent conference to discuss the issue "Solutions for Survival."
    State Health Secretary Alfredo Vigil said the title is not an exaggeration. The malpractice insurance system "is steadily more fragile and less stable," Vigil said. "It just can't continue." He called the size of premiums charged to nurse-midwives and other obstetrics professionals "untenable."
    Gail Stamler, a certified nurse-midwife who practices in Silver City, would agree. She said she has delivered a quarter of all of Grant County's babies since 1995. Her malpractice insurance premium has grown from $3,500 in 1993 to more than $27,000 this year. As if that's not bad enough, the insurance available to nurse-midwives is claims-made coverage. That means the insurance will pay claims that are filed while the policy is in force. Occurrence insurance, which most physicians have, thanks to state law governing malpractice insurance for doctors, pays claims whenever they are filed, even if they come years after the physician has retired and no longer carries insurance coverage.
    To protect herself from lawsuits that might appear after she's left practice, Stamler needs to buy what is known as tail coverage. This is a second policy that will handle claims that occur after the claims-made policy is no longer in force. That tail would cost Stamler more than $31,000. "I don't know how I'll retire," she said.
    Nurse-midwives, licensed midwives, nurse practitioners and other so-called allied professionals have been trying for years to gain some of the malpractice insurance protections physicians have enjoyed since 1976. That year the State Legislature, responding to the complete withdrawal from New Mexico of all physician malpractice insurance carriers, passed a malpractice act that capped damages an injured patient could collect and required plaintiffs to present their cases for compensation to a panel of physicians and lawyers for review before the cases went to court. The American Medical Association consistently rates New Mexico's malpractice environment as one of the best in the nation.
    The act excludes allied providers. Physicians and lawyers teamed up in 2005 to fight the allieds' efforts to join physicians under the act's protections. Lawyers fought other proposals to cap damages resulting from claims against allied providers.
    The Legislature has funded Health Policy Commission efforts since then to surface malpractice insurance problems and solutions. Some of the problems and solutions conference speakers identified have nothing to do with insurance.
    Rural obstetrics practices are financially challenging even without an insurance problem. Richard Grogan, CEO of Alta Vista Regional Hospital in Las Vegas, said the hospital's obstetrics service loses $300,000 a year. "The reimbursement is just not there," he said. For example, the hospital loses 18 cents for every dollar it spends on care if the patient is covered by Medicaid, the state-run program for low-income residents. Grogan said there is only one full-time obstetrician to cover northeastern New Mexico. "People cannot afford to come to the community and start up a practice," so the hospital has to employ practitioners, including a full-time nurse-midwife, he said.
    Payments to providers tend to be equal between rural and urban providers, said Larry Leeman, an associate professor at the University of New Mexico School of Medicine. But while an urban provider could deliver 10 babies a day, a rural provider might deliver a baby every three days. That's not a lot of revenue to support a practice.
    "To fix the issue (of rising insurance rates) you have also to address the issue of quality improvement," said Christy Vigil, an attorney with Presbyterian Healthcare Services. To get that, clinicians have to be trained "in an environment of real peer review," said Secretary Vigil, who is also a physician.
    There might be three doctors in a practice, one of whom has a sky-high rate of delivering babies through cesarean section, for example. It is possible the physician specializes in especially difficult deliveries that require surgery. "It may be the guy wants to go home for dinner," Vigil said. "If you haven't delivered by 4 p.m., you get a C-section." Without honest and routine peer review, there is no way to know which it is.
    The system needs to become more kind and more friendly, he added. "Childbirth is not a disease," but it's often done in a medical environment that's hostile and intimidating, Vigil said. Obstetrics practitioners are sued so often and are so gun-shy their practices are often defensive and their attitude confrontational, he said. "A woman shouldn't walk in the door and get blasted with defensiveness."