NJ Doctors Strike Back on Tort Reform
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NJ Doctors Strike Back on Tort Reform

Think of striking workers and the image that comes into your head is of miners or men standing outside gated factories with picket signs. Striking is for blue-collar workers; it’s certainly not for physicians.

Paul Holmes

Think of striking workers and the image that comes into your head is of miners or men standing outside gated factories with picket signs. Striking is for blue-collar workers; it’s certainly not for physicians.

Similarly, think of the kind of issues that typically provoke a strike and chances are you think of low pay, poor working conditions, inadequate health benefits. Tort reform is an unlikely candidate to make the list.

So you can see why New Jersey’s doctors, preparing to withdraw their services—they didn’t like the word strike—on February 3, felt the need for some public relations assistance.

“The doctors’ message had been muddled,” says Bill Murray, senior vice president at New Jersey’s largest public relations firm, The MWW Group. “Because this was spontaneous, not an organized effort. The trial lawyers had capitalized on that, getting their message out through the media, meeting with editorial boards. The physicians needed to counter that.”

The Medical Society of New Jersey had been a client of MWW’s for some time. The firm’s health advocacy practice had worked with the association on issues ranging from prompt pay to needle exchange programs, and alongside the state’s doctors on the New Jersey anti-tobacco initiative, and had transformed the way it communicated with the public.

“When we started working with the society, it was focused on advertising and lobbying,” says Murray. “But it didn’t know how to get involved in public policy debates, it didn’t know how to shape public opinion. For more than a decade, we have been helping them in the pubic affairs arena, so now they understand media relations, and they have become a powerhouse in the region.”

But the trial lawyers have an equally powerful lobby, and on this issue at least were considerably better organized.

“This was truly a grassroots initiative,” says Murray. “It wasn’t organized by the Medical Scoiety, although it served as a clearing house for information. But this was a spontaneous, grassroots issue, a unified effort, but not an organized one, with all the chaos that goes with it. Physicians wanted to send a message to the public about the impact of malpractice insurance rates.”

In the late 1990s, one of the state’s largest malpractice insurers, Princeton Insurance, reported three to four payments in excess of $1 million each year. Now the company pays out such amounts almost weekly, according to the medical society. “There’s absolutely no formula for a jury to use when figuring out these awards,” says spokesman John Shaffer. “If you can make a jury feel bad for you, you can get $4 million.”

Some physicians, like Dr. Elliot Kaplan—a thoracic surgeon in Morristown—had been forced to stop working after malpractice insurers, who called Kaplan’s his specialty “a magnet for litigation,” refused to issue new policies. When Kaplan finally found one, his annual premium, $60,000, was 40 percent higher than the previous year but provided just a third of the coverage.

But for every story like Kaplan’s, the other side had a tale of a patient, a victim of a botched procedure, left crippled or in agony. Medical negligence, according to a study by the Institute of Medicine, part of the National Academy of Sciences, accounts for up to 98,000 deaths a year across the United States.

And the coalition of trial lawyers and consumer watchdog groups opposed to any cap on awards says doctors and insurers are overstating the problem. While there may be more big, headline-grabbing awards, state figures show the overall number of malpractice cases dropped to 1,650 last year, from 1,780 in 1998, a 7 percent decrease that many attribute to a 1995 state law intended to discourage frivolous suits.

But according to medical society president Robert Rigolosi, many doctors are leaving the state and some are retiring early. Countless others avoid performing difficult procedures, a defensive strategy that effectively limits public access to health care.

The issue of access was the one physicians wanted to underscore by withdrawing their labor. “We wanted to focus on the impact of high premiums on patient access, because many didn’t make the connection that the community was underserved because of malpractice claims. When doctors talked about moving out of state or leaving practice, the attitude was, ‘Where else are they going to go? What else are they going to do?’”

But statistics indicated a real problem. There are 25 percent fewer practicing ob-gyns in New Jersey than there were just a few years ago.

The PR firm also counseled physicians on how to conduct themselves during the work stoppage. “We didn’t want doctors with picket signs outside hospitals or insurance company buildings,” said Murray. So MWW organized a blood drive, creating a focal point for the effort in Bergen County, where the firm believed it could secure national media coverage.

Of the 22,000 doctors in the state, about half participated in the walkout, closing their offices, with most making arrangements to ensure that emergency cases were covered. And about 4,000 made the trip to the state capital, Trenton, to rally in front of the Statehouse in a cold, steady rain, chanting, “Tort reform now!” and sending a message to Governor Jim McGreevey.

Despite the inconvenience to patients, the walkout generated considerable public support for the physicians’ case. A poll published in the Newark Star-Ledger and conducted by Eagleton-Rutgers found that 68 percent of people aware of the physicians’ strike approved of it, even though physicians were calling for a cap on damage awards in malpractice lawsuits brought by patients. And 63 percent of respondents said high malpractice premiums contributed greatly to their own health-care costs. Only 30 percent of respondents believed malpractice premiums were high because of incompetent doctors.

But public support, while nice, was not the most important outcome for the physicians. For the first time, the state Senate began to seriously consider a cap on pain and suffering awards. A last minute effort to prevent the strike had floundered after a compromise plan failed to address the cap, but on Friday of last week, the Medical Society called on physicians to return to work after new legislation promised to cap doctor liability at $300,000 and cover higher awards through a state fund.

While not satisfied with the new proposal, which would rely on surcharges on insurers for funding, the society sees some progress on the issue.

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