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Show Mandatory Medical Arbitration: The Wrong Answer to the Rising Cost of Health Care in Utah Bryson B. Morgan medical malpractice insurance premiums for Utah physicians. Catherine D. Burton, MD, in a letter to several legislators claimed, "We, as physicians will eventually be forced out of medicine (as some of our colleagues already have) because of uncontrollable medical malpractice" (C. Burton, 2004). Alarming statistics are often cited. For example, the University of Utah has seen the number of Ob-Gyn resident applications decrease from 175 applicants five years ago to only 126 this year (Hamilton 2004b, A01). This example is valid, as medical malpractice insurance premiums have increased rapidly over the last few years. In fact, "Utah Ob-Gyns saw their insurance premiums jump 94 percent over the past four years, from $42,000 to $81,628 per year" (Hamilton 2004b, A01). Other physicians in the state and country have experienced similar increases. This rapid jump threatens the future of our health care system. Some argue that in the near future it will be difficult to find Ob-Gyns and other high specialty doctors. Doctors and the insurance industry contend that there are a skyrocketing number of medical malpractice lawsuits, and that these lawsuits are primarily to blame for the sharp premium increase. The threat of malpractice lawsuits is one that most physicians feel very strongly about. Addressing this threat, Dr. T. Scott Lindley said, "The closest parallel I can think of is having cancer or a chronic, incurable disease" (Collins 2004, A01). The Decision Making Process: Intense Pressure and Flawed Analysis In the 2003 General Legislative Session, Senator Leonard Blackham (R-Moroni) introduced Senate Bill 138. The bill would amend Utah Code Ann. 78-14-17, that was enacted in 1999, in the following ways: 1. Allowed a physician to refuse care if the patient declined to sign an arbitration agreement. 2. Provided for automatic renewal of the agreement each year unless the agreement is canceled in writing before the renewal date. 3. Allowed the patient to rescind the agreement within 30 days of signing the agreement. 4- Required that one arbiter be chosen by all persons claiming damages, one arbiter be selected by the health care provider, and a third arbiter be selected jointly from a list of individuals approved by the state or federal courts of Utah. A strong lobbying effort was mounted by well-funded groups such as Intermountain Health Care (IHC), UMA, and the Utah Medical Insurance Association (UMIA). The lobbying effort had begun well before the opening of the legislative session. On December 20, 2002, one month before the 2003 legislative session began, the Utah Trial Lawyers Association's (UTLA) leaders were in attendance at a meeting in the UMA's offices. Douglas G. Mortensen, President of the UTLA Board of Governors, related what happened: Representatives of the Utah Medical Association, Utah Medical Insurance Association and the Utah Hospital Association revealed their commitment to amend Utah's arbitration statute in a way which would allow physicians to refuse care to patients declining to sign arbitration agreements.... We were invited to support, or at least not oppose, the legislation. We were warned that if we opposed the legislation, other medical malpractice "reform" measures even less favorable to our clients and to us would be introduced (2004, 4). The UTLA found itself in a difficult position, and on February 14th 2003, a deal was struck. The UTLA and the Utah Health Care Community issued a joint statement that acknowledged the withdrawal of other bills in return for the UTLA's "withdrawing its opposition to S.B. 138." The deal included the addition of a six-year "sunset" provision to the legislation. In commenting on this deal, Mortensen wrote: "In agreeing to withdraw its opposition to S.B. 138, UTLA did not agree that allowing health care providers to refuse treat' ment to patients declining to sign pre-dispute arbitration agreements was in the public interest or would likely lead to a decrease in malpractice premiums, nor did it agree that a medical malpractice lawsuit 'crisis' existed" (2004). After the withdrawal of UTLA's opposition, S.B. 138 passed in the Utah State Senate on February 21, 2003, by a vote of 24-3-2, and later in the Utah House of Representatives on March 5, 2003, by a vote of 63-11-1. S.B. 138 passed despite the unanimous opinion of the American Arbitration Association (AAA), American Bar Association (ABA), and the American Medical Association (AMA) pub' lished in their July 1998 final report on health care dispute resolution which stated that "The agreement to use arbitration should be knowing and voluntary__In disputes involv' ing patients, binding forms dispute resolution should be used only where the parties agree to do so after the dispute aris' es..." (American Arbitration Association [AAA], American Bar Association [ABA], American Medical Association [AMA], 1998). In passing this bill the legislature gave inadequate consideration to the scope of the problem, the causes of the problem, the proposed solution, and the impact of the bill on the public. The Scope of the Problem A 1999 report regarding "medical errors" by the Institute of Medicine (IOM) demonstrates that far too many Americans face serious possibility of injury, or even death, due to medical mistakes in hospitals. Using the IOM's low estimate of 44,000 deaths per year, medical errors are the eighth leading cause of death in the United States; ahead of both breast cancer and AIDS. The IOM's high-range estimate of 98,000 deaths a year would make medical error related deaths the fifth leading cause of death, more than all other accidental deaths combined (Institute of Medicine, 1999). 44 |
