A unique solution allowed a Nevada trauma center to reopen 10 days after it closed because liability concerns forced almost all of its orthopedic surgeons to quit treating patients.
The experience shows just how hard the country’s liability crisis can hit a single hospital, and it also illustrates a creative remedy that other facilities might be able to use.
The malpractice insurance crisis has hit Nevada physicians particularly hard because, unlike many states, they are not protected by a cap on pain and suffering. A history of multimillion-dollar jury awards combined with other pernicious trends in the insurance industry to cause staggering increases in medical malpractice liability premiums for Nevada physicians, especially those involved in high-risk surgery such as orthopedics. In July, the burden became too much for the 70 orthopedic surgeons on call for the University of Nevada Medical Center in Las Vegas, says hospital spokesman Rick Plummer.
"One trauma surgeons’ liability insurance went from $40,000 to $250,000 a year," he says. "If they paid that, they would actually be paying more than they make. So they said no; they’ll have to go practice somewhere else."
In July, almost all of the orthopedic surgeons resigned from the trauma unit at the medical center, which treated 11,439 people in 2001. When the surgeons resigned, the hospital had no choice but to close down the trauma center immediately.
"We have other surgeons on call, but orthopedic surgeons are called in on most of the traumas because people are coming in broken up from accidents," Plummer says. "You can’t run a trauma center without orthopedic surgeons, and they’re taking on patients who are at high risk, with very serious injuries."
The surgeons were not employed by the hospital; they were all individual surgeons or members of surgery groups that were privileged at the hospital. They all resigned from the trauma center over the course of a few days, and hospital officials knew it would be nearly impossible to replace them. Nevada usually ranks 49th or 50th (depending on the source) among states in physician-per-capita ratios, and many physicians are leaving the state because of the liability crisis, Plummer says. St Paul’s, a major player in the malpractice insurance business, recently pulled out of Nevada because the lack of liability caps left the insurer holding the bag for major awards.
Since St. Paul’s had marketed aggressively against other insurers, Plummer says the insurer’s withdrawal from the state left 60% of Nevada physicians scrambling for coverage just as their rates were climbing sky high.
More than 1,300 hospitals in the United States have curtailed service or closed units because of the liability crisis, according to a recent survey by the American Hospital Association. The survey found that 20% of the nation’s hospitals had cut back on services and another 6% had locked the doors on treatment units. Many of those were obstetric units, where escalating malpractice premiums drove physicians out of practice.
Hospital hires surgeons to protect them
Closing the trauma center was a major blow to the community because it would mean Las Vegas residents would have to go at least 180 miles to the nearest trauma center. Members of the emergency room staff at the University of Nevada took classes in trauma procedures, and other hospitals in the area set aside operating rooms to handle trauma cases that otherwise would have gone to the university’s trauma center. But those steps were inadequate, and it was clear to everyone that drastic action was needed to reopen the trauma center, Plummer says.
Government officials initiated action on two levels. First, Nevada Gov. Kenny Guinn called a special session of the state Legislature to consider a measure that would permanently cap jury awards in malpractice suits. But in the meantime, the University of Nevada needed to find a way to reopen its trauma center as quickly as possible. Thinking creatively, they found a temporary measure that worked.
"Our county commissioners actually hired these orthopedic surgeons under contract, on a temporary basis," Plummer explains. "By hiring them, they were protected under the medical center’s liability cap, which limits punitive damages to $50,000 because we’re a public county hospital. By putting them under a 45-day contract, we were able to reopen while waiting for the special legislative session."
The biggest hurdle in implementing that solution was determining whether the medical center’s caps would extend to the physicians under the temporary contract. The county requested an opinion from the state attorney general, who determined that the caps did apply. With that assurance, the orthopedic surgeons agreed to work under the temporary contract and the trauma center reopened 10 days after it closed.
A special session by the state legislature resulted in new liability caps for Nevada physicians — $350,000 for pain and suffering and $1 million combined liability for a single malpractice case. With those caps in place, orthopedic surgeons in Nevada were expected to have an easier time finding reasonable malpractice premiums after the 45-day hospital contract ended.
The American Medical Association (AMA) has repeatedly expressed concern about the liability threat facing trauma centers. In the most recent situation getting the AMA’s attention, tens of thousands of West Virginians found themselves without a Level I trauma center. The West Virginia Department of Health and Human Services recently downgraded the Charleston Area Medical Center to Level III status because the center does not have enough orthopedic surgeons to staff the center 24 hours per day, seven days per week. The shortage of orthopedic surgeons was caused by the same problem seen in Nevada — liability concerns.
The only other Level I trauma center in West Virginia is more than 150 miles from Charleston and frequently inaccessible by helicopter during the fall and winter months.
The AMA strongly supports reforms contained in HR 4600 and S 2793 — federal legislation based on California’s MICRA law, which has protected California’s patients and physicians for more than 25 years. Medical liability reform is the AMA’s top legislative priority, according to Donald Palmisano, MD, president of the AMA.
"While lawmakers debate the merits of much-needed, long-term liability reform, they should realize that continued inaction means more patients will have a harder time finding needed medical care as specialists continue to leave the state and fewer, if any, physicians begin a practice in West Virginia," Palmisano says. "This is as dire as it gets."
The situation was very similar in Nevada, Plummer says. Physicians and risk managers had complained long and hard about the growing liability crisis, but legislators had not acted. It wasn’t until St. Paul’s left the state, leaving so many physicians without coverage, that the issue came to a head and a special session was called.
"I would hope that others states and other hospitals would learn from Nevada and not let it go as far as we did," Plummer says. "Nevada was one of nine states without a cap on punitive damages or pain and suffering, and every single state is facing what Nevada faced. Even though we got our trauma center back open, this was a tough experience."
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