Doctors reconsider SustiNet support after liability protection withdrawn

Physician groups on Tuesday blasted a decision by lawmakers to remove a medical liability protection provision from the proposed SustiNet bill, and some doctors suggested that it could undermine the effort to create a state-run health insurance plan.

“It wouldn’t shock me if we come out actually in opposition to the bill,” said Dr. David S. Katz, president of the Connecticut State Medical Society, which represents more than 7,000 doctors and medical students and previously supported SustiNet. “I see our support as questionable at best.”

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 also are urging lawmakers to restore the liability provision.

Malpractice liability has long been a major concern for doctors, and many cheered the provision included in the proposed SustiNet bill, which calls for joining state-funded health insurance pools and offering state-run insurance coverage to the public. The provision would have protected health care providers from liability if they injure a patient covered by SustiNet while following clinical care guidelines. It was intended as a way to promote evidence-based practice and to control costs by reducing defensive medicine–doctors’ impulse to order tests or procedures based on fear of being sued, rather than on medical judgment.

But lawmakers removed the liability section from the version of the bill that passed the Public Health Committee Monday. Committee co-chairwoman Rep. Elizabeth B. Ritter, D-Waterford, said the provision was removed in response to concerns that limiting liability for injuries to SustiNet patients would create a double standard in the judicial system.

“It seemed to be that we were trying to use a health insurance program bill to solve really a judicial system issue,” she said. “From a policy standpoint, that wasn’t going to work too well.”

Several Republican lawmakers on the Public Health Committee criticized the decision to remove the provision, saying it missed an opportunity to address the costs associated with defensive medicine, although they also opposed the bill on other grounds. Ritter suggested that malpractice reform could be addressed through separate legislation.

She also noted that the bill is not yet in final form. It will likely be amended as it moves through the legislature. It is now awaiting action by the Insurance and Real Estate Committee, and must also pass through the Government Administration and Elections, Appropriations, Human Services, Labor and Public Employees, and Finance, Revenue and Bonding committees before reaching the House floor.

“If anyone has any other suggestions, hey, bring them on, we’re always happy to talk,” Ritter said.

The liability provision drew criticism during a public hearing last month from people who had been harmed by health care providers and from trial lawyers, who raised questions about the feasibility of the proposal and criticized the idea of “giving doctors the right to harm patients without compensating them simply because they complied with guidelines.”

Doctors expressed frustration that legislators removed the liability provision, which had been recommended by the nine-member board that designed SustiNet and which included only one doctor.

While the provision was only one piece of an expansive bill, Katz said removing it could undermine the SustiNet proposal’s goals.

“I personally don’t think it’s a financially sustainable deal the way they have it now,” said Katz, a Milford general surgeon. “It won’t serve to increase access to patients.”

To expand coverage to more people, Katz said there will need to be cost savings in the system, and removing the potential for savings from limiting defensive medicine will likely mean cutting costs in other areas, like the rates paid to providers. That could make it hard to get doctors to treat SustiNet patients.

“This piece has to be in there in order to be able to decrease defensive medicine costs and recycle that money so that more people can access that system,” Katz said.

Dr. Robert McLean, a New Haven internist and governor of the Connecticut Chapter of the American College of Physicians, said doctors with already busy practices might have doubts about taking on SustiNet patients, particularly since it’s not clear how well the plan will pay. The liability protection would have guaranteed that doctors would embrace it, he said.

“When you’re looking at trying to bring doctors and other providers into the mix of seeing this large pool of patients, I think a lot of people who may otherwise have a bad taste in their mouth from excessive regulation, from other government-run programs like Medicare, they need to have some carrots to bring them into some of those systems,” he said. “And it’s a big carrot to bring them into the system.”

McLean, who served on a committee involved in developing the SustiNet plan, said it’s not clear whether his organization will withdraw its support for the bill if the liability provision isn’t restored. He said SustiNet is a promising way to bring changes to the health care delivery system, such as the use of patient-centered “medical homes,” which emphasizes coordinating patient care.

“It would be a real shame if this doesn’t move forward in a more productive way,” he said.

SustiNet supporters said the loss of the liability provision shouldn’t undermine the plan’s ability to make other changes and improve the health care system.

State Healthcare Advocate Victoria Veltri, who co-chairs the SustiNet board, said everyone involved in crafting the proposal understands the malpractice liability concerns. But that provision isn’t as critical to the plan as other aspects, she said.

“It has so many positive things, I would hate to think that the deletion of that one provision would cause the providers to walk away completely from SustiNet,” said Veltri, who was not involved in the decision to remove the liability portion from the bill.

Ritter noted that SustiNet without the liability provision simply leaves the malpractice situation where it is today. If the liability provision became law through SustiNet, she wondered, would doctors treat patients in SustiNet differently?

“While I can understand they’re disappointed, I don’t mean to minimize that, I would hope that there’s an understanding of the difficulties there that were created,” she said.

She also noted that it’s difficult to quantify the extent to which liability issues drive up health care costs.

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.

Other cost drivers include use of high-cost care, people foregoing preventive care and ultimately needing more costly treatment, prescription drug costs and a lack of patient education that can result in some patients going to the doctor over minor concerns rather than trying to address them on their own, Veltri said.

“I won’t say that liability’s not an issue,” Veltri said. “It’s definitely an issue. But it’s not the primary driver of increasing health costs.”

Katz and McLean acknowledged that it can be difficult to pinpoint the extent to which defensive medicine exists. It can be hard to separate decisions driven by fear of being sued from pressure from patients’ expectation of receiving exhaustive testing to address a problem. But McLean said it needs to be addressed to improve the health care system.

“Defensive medicine is a huge part of the problem,” McLean said. “It may be hard to quantify, and that’s part of the problem. But it’s a big part. It is a way that doctors think.”