Linda Moss | NJ Spotlight
With New Jersey facing a worsening shortage of physicians, key medical and business groups say there’s only one way to stem the losses: Take action now to reform the medical malpractice laws that are costing the state its doctors. And policymakers are getting the message, crafting legislation aimed at addressing the issue.
“In medical malpractice, I think you’ve seen great concern among doctors that our civil justice laws don’t give them adequate protection from abusive lawsuits,” says Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance (NJLRA), a statewide group representing businesses, law firms, and medical and nursing associations.
Proponents of reform are stepping up their lobbying of the legislature and hope to gain the committed support of the Christie administration. Action is particularly urgent now, they say, after last month’s State Supreme Court ruling on the 1995 affidavit of merit statute, meant to limit malpractice suits against board-certified physicians. The statute requires plaintiff filings to be supported by an affidavit of a board-certified doctor in the same specialty or subspecialty, but the high court said a lower court could accept one from a surgeon who wasn’t certified in gastroenterology to support a malpractice suit against a board-certified gastroenterologist.
“The affidavit of merit statute was the best defense doctors had against abusive lawsuits,” Rayner says, claiming that the decision “gutted it completely.”
Another issue, according to the NJLRA, is that New Jersey invites so-called “litigation tourism” by out-of-state plaintiffs because of its weak evidentiary standards, with the courts accepting evidence that is not permitted in other states, making it easier to sue and win here.
Now there’s a good number of medical malpractice suits in New Jersey that name pharmaceutical companies as well as physicians and hospitals as defendants. Suits also are filed against drug manufacturers in New Jersey because many of the companies are headquartered here.
Since pharmaceutical makers are one of the state’s largest employers, this litigation is making the state less welcoming to drug manufacturers and discouraging any expansion by existing companies already operating in the state.
“New Jersey is becoming a magnet for lawsuits from around the country against our largest and most significant employers,” Rayner says. Taken with everything else, he says, “New Jersey needs comprehensive medical malpractice reform now more than ever.”
Limit Malpractice, Not Lawsuits
While groups like the NJLRA and the New Jersey Hospital Association (NJHA) are seeking quick action on reform, the state trial lawyers’ group, the New Jersey Association for Justice (NJAJ), is vocal in its opposition to changes, which it argues might deny patients’ right to trial and, moreover, don’t address what it believes is the real cause of rising malpractice premiums: mistakes by the medical community.
Last year, 98,000 people died from preventable medical errors, making it the sixth-leading cause of death in the United States, according to Michael Galpern, who was named president of the NJAJ last month.
“If it were any other industry causing this much death and this much despair, the focus would not be on giving them reform and breaks and protection,” Galpern says. “It would be at getting at the underlying root of the problem.” He says the best way to drive down premiums is to reduce preventable medical errors.
The NJAJ also contends that significant medical malpractice reforms have been made in the past 14 years and that there’s no need for more changes this year.
“Since 1995, there have been 10 separate restrictions on the right to sue or recover for medical malpractice,” Galpern says.
The NJRLA disputes that number, saying that just two of those 10 charges were specific to medical malpractice.
Galpern argues that the changes — including those enabled in the affidavit of merit statute — have led to a 45 percent drop in the number of medical malpractice suits filed in the Garden State, from 2,435 in 1995 to 1,340 in 2009.
The NJRLA said it couldn’t verify that figure, but Rayner sees the issue another way. “New Jersey’s doctor shortage won’t be addressed by denying that a medical malpractice crisis exists.”
Doctor Deficit Growing Worse?
Just how serious is that shortage? A study done this year by the New Jersey Council of Teaching Hospitals predicted a deficit of more than 2,800 doctors in the state by 2020.
“We have a medical brain drain in New Jersey,” says Assemblywoman Amy Handlin (R-Monmouth). “Doctors are fleeing the state, and there is overwhelming evidence that a key reason is the fact that our medical malpractice insurance premiums have gone through the roof. They are among the highest in the country.”
Galpern, however, disputes the link. Citing the hospital council’s study, he says the top reasons that graduating doctors planned to leave the state to were wages and the cost of living, followed by the absence of advanced training opportunities and low physician morale.
“Medical malpractice premiums just are not a significant factor in physicians deciding to leave the state,” he said.
State Sen. Loretta Weinberg (D-Bergen) disagrees. “Certainly as we look into what is causing our young physicians whom we graduate here to move to other places, medical malpractice is one of the issues that consistently comes up,” she says.
And some data show that New Jersey has become a particularly inhospitable climate for OB/GYNs. Malpractice premiums for that specialty are the seventh-highest in the nation, according to the NJLRA.
That’s one of the factors spurring Weinberg, who with Handlin is co-sponsoring medical malpractice reform bill S760 and A1982.
“My reason for signing on was to get this discussion moving because the New Jersey Women’s Legislative Caucus held a hearing on what we perceived to be a growing shortage of physicians in the state of New Jersey, most particularly from the women’s viewpoint of OB-GYN and family practice,” Weinberg says.
The bills provisions include: barring insurers from raising a doctor’s premiums simply because that physician is being sued; protecting volunteer “good Samaritan” doctors from civil liability; narrowing the window for filing a lawsuit to not more than four years after the alleged incident; and mandating that the patient must have a relationship with the medical provider he or she is suing.
So far, however, the legislation has gained little traction; it’s on first reading in both houses. But Handlin says it will remain a priority for her. “I’ve been pushing for it as hard as I can,” she says. “This is not some obscure issue related to courtroom procedure. It’s an everyday crisis looming for ordinary citizens.”
“If the women legislators push this,” Weinberg says, “I assume we can get a hearing. But we’ll see.”
Waiting on Christie
There is at least one thing that groups on both sides of the issue have in common: They’re waiting to see exactly what Gov. Christie plans to do. Advocates for reform are particularly upbeat.
“Gov. Christie ran on a platform that included tort reform,” Rayner says. “And we now have a Legislature that is clearly interested in improving the economic competitiveness of the state. We believe tort reform needs to be a part of that. And we believe it has to happen.”
Still, while representatives of the administration claim that there is support for reform, they are not committing to any particular approaches or deadlines.
“Our plate has been full in our first six months, and we have some budget and reform priorities that will all be revisited as soon as the summer is over,” says spokesman Mike Drewniak. Medical malpractice reform is “on the plate, but it’s not on the front of the plate right now.”
The Governor’s policymakers have had meetings with medical malpractice reform advocates, Drewniak says, adding, “They definitely have our ear.”
While Christie is committed to medical malpractice reform “in principle,” says deputy press secretary Kevin Roberts, “that can come in a number of different forms…. We’ll obviously be continuing to look at it in the future, perhaps the near future. But we’re still in the initial stages.”
After hearing complaints from the state’s business community, which includes large pharmaceutical members, the governor’s policy makers are looking at malpractice reform in the context of larger civil justice reform, according to several sources.
One way New Jersey might begin to address the issue is to look at applying for federal money to launch a pilot program for mediation of malpractice cases — those involving newborns — before they go to trial. Officials are closely watching a similar mediation test program that New York State just rolled out.
Seeking Common Ground
The trial lawyers’ group, meanwhile, expects the Governor to be reasonable when it comes to any medical malpractice reform, based on his career as a lawyer.
“He understands the issues of the rule of law and he understands the importance of the right to a jury trial and the need for a civil remedy and a jury trial,” Galpern says. “We believe that there is common ground that can be worked out on some of these issues, all the while preserving a person’s constitutional right to a jury trial in civil matters.”
For its part, the NJLRA isn’t saying that lawyers are the cause of the state’s medical-malpractice woes.
“It’s easy and it’s shallow to just say lawyers are to blame,” Rayner says. “The problem is systemic. Our elected officials need to make sure the system is fair and is one that is not abused. We believe the pendulum in New Jersey has swung too far toward abuse.”