Cardiologists drop SustiNet support over loss of liability protection

A group of cardiologists and cardiac care associates has pulled its support for the proposed state-run SustiNet health plan because lawmakers removed a malpractice liability protection provision from the bill.

Four other medical groups previously expressed concern about the move and warned that they could reconsider their positions on the proposal. But the Connecticut Chapter of the American College of Cardiology is the first medical group to withdraw its support.

The group plans to make its position known in newspaper advertisements this week that include an open letter to legislators, Gov. Dannel P. Malloy, and members of the SustiNet board.

In the letter, the chapter president, Dr. Neal Lippman, and president-elect, Dr. Gilead Lancaster, said the group was an early supporter of SustiNet, but that they cannot support it since lawmakers removed a provision that would have protected health care providers from liability if they injure a patient covered by the plan while following clinical care guidelines.

Without the protection, they wrote, the plan “would result in a dramatic increase in the cost of healthcare in Connecticut and expose patients to more tests of limited value” and fail to attract doctors to participate.

“Without these protections, we believe that SustiNet will share the fate of the disastrous Charter Oak insurance plan in which very few doctors are participating due to its poorly conceived support for quality medical providers,” the doctors wrote, referring to a program created in 2008 to provide coverage for uninsured residents.

The SustiNet proposal calls for joining state-funded health insurance plans under common management and, later, offering state-run insurance coverage to the public. The plan includes several delivery system changes aimed at improving health while slowing the growth of health care spending.

The bill has passed the Public Health, Insurance and Real Estate, and Human Services committees, but its future is not certain. It has drawn staunch opposition from legislative Republicans, the insurance industry and some business groups, and Malloy, while supportive of SustiNet’s goals and of federal health reform, has not embraced the proposal.

“We’ve got a pretty full agenda right now with everything we have to implement between now and 2014, and quite honestly, the state’s not in a position to underwrite the expenses at this point that certainly would come as a result of SustiNet implementation any time before 2014,” Malloy told hospital executives last week.

The plan still has many backers, including House Speaker Christopher G. Donovan, D-Meriden, and many social service advocates, unions, small business owners and health care providers.

Many doctors had applauded the liability protection provision, which was intended to promote the use of evidence-based medicine and to reduce physicians’ practice of ordering potentially unnecessary tests and procedures out of a fear of being sued if they don’t cover all bases.

But the provision proved controversial. People who had been harmed by health care providers blasted the concept, as did trial lawyers, who criticized the idea of “giving doctors the right to harm patients without compensating them simply because they complied with guidelines.”

Lawmakers decided to remove the provision in response to concerns it would create a double standard between people covered by SustiNet and everyone else and was using an insurance plan to address a problem in the judicial system.

The decision outraged the Connecticut State Medical Society, the Connecticut Chapter of the American College of Physicians, the Connecticut Academy of Family Physicians and the Connecticut Chapter of the American Academy of Pediatrics. Leaders said that without offering liability protection, SustiNet could have a harder time attracting already-busy physicians to accept a government insurance plan. Without the savings that could be achieved by cutting down on tests and procedure ordered to rule out lawsuits, they said, the plan will struggle to cut down on costs.

Doctor participation in SustiNet could also be limited because the SustiNet bill still calls for the creation of a committee to recommend clinical care guidelines, but doesn’t protect doctors who follow them, Lancaster said.

It can be hard to convince doctors to follow guidelines if they are concerned about potential lawsuits, he said. Guidelines might suggest that the risks of a test, including patient discomfort and radiation exposure, outweigh the benefits of performing it, but doctors might still do it if there’s a chance they could be sued for not performing the test.

“We really are sometimes so scared of being sued that it hampers our better judgment,” he said.

Lancaster noted that the liability protection would only apply to doctors following specific guidelines.

“So if we do a surgery and mess up the surgery or whatever else, we’re still just as liable as we were before,” he said.

Juan A. Figueroa, president of the Universal Health Care Foundation, which developed the initial plans for SustiNet, said the medical liability provision was just one piece of SustiNet and its elimination shouldn’t be a reason to give up on the plan.

“What the cardiologists have done is sort of akin to throwing out the baby with the bathwater,” he said. “The fact of the matter is that SustiNet is a comprehensive approach to health care reform that takes into account a number of issues that the medical profession has raised.”

That includes seeking to encourage the use of patient-centered medical homes and revising the Medicaid rates paid to health care providers, he said.

Other SustiNet supporters have noted that it is difficult to quantify the impact of doctors ordering tests and procedures to avoid lawsuits–known as defensive medicine–in health care costs, and that it is not the only reason costs are rising.

Estimates of the cost of defensive medicine vary widely. One study published last September estimated the annual cost of the medical liability system to be $55.6 billion, or 2.4 percent of health care spending. Other studies have suggested it has a larger impact.

Public Health Committee Co-Chairwoman Rep. Elizabeth B. Ritter, D-Waterford, said she understands the doctors’ disappointment, but she said the way to address tort reform is not through an insurance program.

“The physicians seem to have been pinning their hopes on using this bill as a tool to accomplish tort reform through the judicial system,” Ritter said. “The problem is that establishing a different form of redress through the court system for a group of people because they have a certain insurance program creates a very difficult double standard in the legal system. And that’s something that thus far we haven’t been able to get around.”