Below is the written testimony I provided to the Maine Legislature’s Joint Judiciary Committee in support of LD 1311, “The Patient Compensation System” Act.
The proposed legislation would establish a quasi-government agency to do objective reviews of cases in which there is alleged preventable medical injury. It would do a few important things. It would allow physicians not to practice “defensive medicine,” which is what almost every doctor does. It is the ordering of too many lab tests, CT scans, MRIs, etc. not because the doctor thinks they are really needed, but because they are afraid if they don’t, they could get sued.
It would allow more Mainers to access the system and be compensated fairly, rather than have malpractice lawyers cherry pick only the big money cases. It would dramatically increase the percentage of money going to injured patients rather than into the coffers of the big malpractice insurance companies and the lawyers for both plaintiff patients and defendant doctors. Currently, patients get 11 cents on the dollar of malpractice premiums paid by doctors. With the new system, they would get roughly 80 cents on the dollar of what physicians pay into the system.
More importantly, it allows doctors to treat patients without the fear of being sued. It would allow physicians to admit when they are wrong and work with the patient to make things right, rather than be tight lipped and “lawyer up.” Most doctors practicing today were told in their training by senior physicians that you never tell a patient that you were wrong, or that you are sorry. Many equate that to an admission of guilt which increases the likelihood of a lawsuit. Physicians are generally compassionate people. To teach them not to have compassion and connection with their patients is contrary to their human nature.
If doctors know that in Maine, they can treat patients with good medicine rather than defensive medicine without fear of being sued, and patients know that they are protected in case of avoidable medical injury, everybody wins…except the ambulance chasers…
February 9, 2016
I would like to thank the chairperson and members of this committee for allowing me to speak today in support of the proposed bill, “The Patient Compensation System Act.”
My name is Michael A. Ciampi, M.D. I am a family physician and owner of Ciampi Family Practice. I live and practice in the City of South Portland.
I come here with some trepidation because I self identify as being conservative/libertarian. I never pictured myself testifying in support of increasing the size of government.
I think it is important to hear their perspective of a practicing physician with respect to why this bill is necessary. I represent myself as an independent physician. I am not a part of the organized medicine associations in the State of Maine who sometimes have conflicting interests and do not always represent their constituents as well as they should.
I think it is important for the committee to understand the hostile environment in which physicians practice today. In doing so, I believe they will understand the merits of the proposed legislation to alleviate this hostile work environment.
In today’s society, American physicians are in a no-win situation. On one hand, they feel pressure placed upon them by patients and malpractice attorneys to practice defensive medicine. Often physicians will order blood tests and expensive imaging studies that they know have a low chance of showing any disease. They do this because they fear frivolous malpractice suits which have the potential to ruin their careers. This leads to dissatisfaction on the part of the physician because they know that they are not practicing good medicine. It also increases the costs of health care delivery on society as well as individual patients.
On the other hand, physicians are also under pressure from government and commercial insurers not to order tests which they believe are medically appropriate. In fact, under the so-called Patient Protection and Affordable Care Act (PP/ACA), also known as Obamacare, specifically with the advent of Accountable Care Organizations (ACOs), physicians and hospitals are financially penalized for ordering tests. As I stated before, the physicians are in a no win situation. If they don’t order enough tests, they can be sued. If they order too many, they can face financial penalties or can be kicked out of insurance networks and have their livelihoods threatened.
Unfortunately, physicians cannot always count on malpractice insurance carriers to be on their side. Frequently, the company will look at a case in which a physician needs to be defended. Often, even if they believe that a plaintiff’s case has no merit, they will calculate the cost of defending the case vs. settling it out of court. If the latter will cost them less money, they will settle. This leaves the physician feeling betrayed, and with a black mark on their record for many years that they did not deserve.
The circumstances described above are certainly contributing to what is now being recognized as a large problem in American society called “Physician Burnout.” This is gaining increasing attention and both the medical journals as well as the mainstream media. Tragically, Physician Burnout is also correlating with an increasing number of physician suicides in this country.
I would like to make the committee members aware that in America, we are facing a critical shortage of physicians. Each year the number of physicians who are retiring or leaving medicine completely outnumbers the ranks of graduating medical students by approximately 10,000 per year. Within 10 years we will have 100,000 less physicians in this country. With an ever-increasing population, this will put us into a true healthcare crisis.
I am under no illusion that malpractice and tort reform will solve the entire problem, but I am convinced that it is a substantial piece of the problem that should be addressed immediately.
To explain why I think the legislation would have a positive impact on a more local level, I would like to share a couple anecdotes.
I am aware of a friend and colleague who practiced anesthesia and pain medicine in the Greater Portland area for many years. He was an excellent physician. The best testimony I can give on his behalf is that if I were to need anesthesia or a complicated injection into my back or neck, he would have been the one I would have wanted to do the procedure. He was an excellent physician with an excellent reputation. Unfortunately he had a patient who suffered a bad outcome. Bad outcomes are tragic. Unfortunately, despite doing everything appropriately they are sometimes unavoidable and a known risk of any procedure. The case was reviewed by an independent panel and it was their opinion that the standard of care was met,and that the physician did nothing wrong. The patient retained a malpractice attorney with a reputation for being aggressive and hostile to physicians. In the court room he was able to play upon the jury’s emotions and secure for his client a very large sum of money. While this was good for the malpractice attorney and his client, it demoralized the physician. He subsequently decided to leave the state because of his tarnished reputation. This represented a huge loss to the patients of the community because he was not longer there to help them. I believe that if the proposed system were in place, the case could have been evaluated objectively rather than based primarily on emotions. If the patient suffered legitimate injury at the hands of a physician who was negligent, he would have been compensated appropriately and the case could have been examined for opportunities in quality improvement. I would like to think that this physician would still be practicing in Maine and helping the people of our state.
The other anecdote I would like to share hits me even closer to home. It is that of my father, Louis Ciampi, MD. He had been a physician practicing in the Greater Portland area for over 40 years before he decided to retire and have me take over his practice. He retired because of his frustration with paperwork and because of the increasing cost of practicing medicine, including malpractice premiums. It was his desire after having left his practice to continue contributing to society by volunteering at the Portland Free Clinic. It had been his custom to volunteer one or two nights a month for several years prior to his retirement. He was hoping to increase his time volunteering. All he asked of them was that they pay for his malpractice coverage while he was providing services there for needly Mainers. Unfortunately they were unable to do this. He realized that if he did not have malpractice coverage and did volunteer work, he could lose his home and his retirement savings should someone sue him. Because of this realization, he made the rational decision not to volunteer at the clinic. Again, this represented a huge loss to the community. I suspect that there are many other newly retired physicians who have a lot to contribute to society who are being prevented from doing so because of an out-of-control malpractice environment. I would suggest to the committee that if the proposed new system were to be put in place, It may encourage more physicians to volunteer without fear of losing their personal assets. This would greatly contribute to the betterment of society and especially to working Mainers who do not have insurance.
I would also like to make the committee aware that when physicians graduate from their residency programs or fellowships and are looking for new places to practice, they look at several factors including the malpractice climate of any given state. This is especially true of much needed specialists, such as obstetricians and neurosurgeons. I submit to the committee that if the state of Maine were to adopt the proposed legislation, our state would be a much more attractive place to which physicians would relocate. I cite the State of Texas as evidence of this assertion. When they passed common sense tort reforms, physicians from all over the country flocked to that state. I think something similar may happen in Maine.
In closing, I would ask the committee members to consider how much better we would be in this state if we were able to create an environment in which physicians felt safer practicing good medicine rather than defensive medicine. It would save patients and the state money. It would incentivize physicians to relocate here, and allow retired physicians to more easily volunteer their time and experience to help the poor of our state.
Thank you for your time and attention.
Michael A. Ciampi, M.D.