Richard E. Anderson, MD, FACP, is chairman and chief executive officer of The Doctors Company, the nation’s largest physician-owned medical malpractice insurance provider. Dr. Anderson was a clinical professor of medicine at the University of California, San Diego, and is past chairman of the Department of Medicine at Scripps Memorial Hospital, where he served as senior oncologist for 18 years.

Recently, the ACC contracted with The Doctors Company to launch the first ever national program tailored to cardiologists and targeted at reducing risk and premiums specifically for cardiovascular teams. Benefits for ACC members include:

• A claims free credit (with rates based on jurisdiction).
• Five percent program discount with a favorable claims history.
• Five percent for MOC participation.
• Five percent  for participation in the PINNACLE Registry^®.

In this interview, Dr. Anderson covers some of the challenges relating to medical liability facing cardiologists in this litigious age.

CSWN: Let’s start at the beginning – the phone call comes through and a doctor is being sued. Even though the vast majority of those do not lead to a settlement, it doesn’t mean they don’t lead to cost.

Dr. Anderson: That’s right. In general, we close eight out of 10 claims with no payment. But if you take 100 percent of claims, it will cost us – on average in 2011 – $112,000 to close. Every time the phone rings, we anticipate that is a $112,000 phone call.

CSWN: Wow – it sounds like reading the fine print in their coverage is more important now than ever for doctors.

Dr. Anderson: Absolutely. I think physicians worried about liability are unclear on how to practice and unclear about what patients expect. We saw this in the early days of managed care: patients had an explicit expectation that 100% of their medical needs would be met by their physician and covered by their plan. Of course, that is the inverse of the reality of managed care. But patients’ initial expectations were “unlimited care now.”

It’s hard to avoid the idea that this issue should somehow be a component of health care reform. We are going to have 30 million additional people entering the mainstream health care system. In a broad societal sense, that’s probably a good thing. But we’re certainly not seeing a 30 percent increase in physicians who are caring for them. So we take an already strained medical care delivery system and add 30 million new patients to it, many of whom have had very limited care and are expected to be sicker than the average patient. Yet we are doing next to nothing about increasing the facilities and resources available to care for these new patients.

CSWN: We also need to consider our standards of care within that frayed system. How do standards of care relate to guidelines-based care?

Dr. Anderson: I think it’s really important to make this distinction. The right thing to do is always the right thing to do and to the extent that practice guidelines help us to see what the right thing is – absolutely, we support them 100 percent. We would never want to put people in the position of not defining the right thing to do and not practicing the right thing in the reality of clinical care.

But if we asked the question – do practice guidelines help us in court? – the answer unfortunately is both yes and no. If you don’t follow the practice guideline then you are going to have to explicitly defend that position. But if you do follow the practice guideline, it’s not going to scare the plaintiff’s attorney off. If you follow the practice guideline and you have an unfortunate outcome, then you won’t litigate on that point – rather the claim will be you negligently implemented the guideline. So, we have very few examples that I can cite where we were able to get a dismissal of a claim simply because the physician followed the practice guidelines.

CSWN: Is health care reform going to be the answer?

Dr. Anderson: I wish I knew. Unfortunately, in its current form, I don’t think it’s going to resolve any of the litigation issues. In fact, regardless of one’s beliefs regarding the shape of health care reform – what it’s going to be, what it ought to be, what it looks like, what it ought to look like – there is really nothing in it that suggests that in the foreseeable future it’s going to improve the problems of defensive medicine or going to protect physicians from frivolous litigation.

With the disruption that is associated with health care reforms, it wouldn’t be hard to anticipate that there actually will be more litigation. Physicians will be forming new practice organizations working with colleagues they may not know. Meanwhile, patients may be getting some of their care in one place, some in other places, and those places may be neither clinic-related nor geographically-related. It gives a much higher likelihood at least during a long transition period that we’ll have either limited or no ongoing doctor-patient relationships. With so much disruption and uncertainty, it’s hard to see how that would not result in more litigation.

CSWN: And when you have these new alliances, who is responsible for what in terms of indemnity?

Dr. Anderson: The accountability/responsibility piece is a tremendous clinical problem. In the new system, it appears more and more that while there’s nothing that will decrease the responsibility of physicians, there are a million different things that will decrease their authority. So you have this terrible line of unlimited responsibility/limited authority. But if doctors are going to be functioning in large part as team leaders, they become explicitly responsible for very broad teams over which they may have very limited control.

And with national health care reform, even if the Supreme Court were to nullify the actual legislation, I don’t think the trends towards consolidating medical practices are really reversible. And so you will haves doctors practicing in larger and larger entities over which they may have less and less clinical control, and being in court as a co-defendant with a large faceless institutional entity is never going to be a good thing from a physician’s point of view.

That is especially true because at the end of the day, medical care is one on one – it is one doctor with one patient in one room.

CSWN: Thank you very much. 

Keywords: Uncertainty, Managed Care Programs, Health Care Reform, Social Responsibility, Standard of Care, Liability, Legal, Registries, Malpractice, Physician-Patient Relations, Forecasting, Probability, Reading, Ownership, Defensive Medicine

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