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Canada keeps malpractice cost in check

For neurosurgeons in Miami, the annual cost of medical malpractice insurance is astronomical — $237,000, far more than the median price of a house.

In Toronto, a neurosurgeon pays about $29,200 for coverage. It's even less in Montreal ($20,600) and Vancouver ($10,650).

The costs are strikingly different, largely because of the ways in which Canada insures doctors and protects those who are sued:

• In 1978, the Canadian Supreme Court limited damages for pain and suffering. Adjusted for inflation, the cap now is just over $300,000. The United States has no federal cap on damages, though a few states, including Florida, have imposed them.

• Instead of buying insurance from a for-profit company, as most U.S. doctors do, Canadian physicians are covered through their membership in the nonprofit Canadian Medical Protective Association.

Membership fees vary only by the type of work and region of the country. All neurosurgeons in Ontario, for example, pay the same amount regardless of how many times each may have been hit with a claim.

"We don't adjust our fees based on individual experience; it's the experience of the group,'' says Dr. John Gray, the executive director. "That's what the mutual approach is all about, and it helps keep the fees down for everyone.''

Moreover, the association provides legal counsel for doctors who are sued and pays the damages, no matter how much.

In the U.S. health care debate, malpractice is an emotional issue, fueled by huge awards in a few well-publicized cases. President Barack Obama was booed in June when he told the American Medical Association he wouldn't push for limits on malpractice jury awards in his plan to overhaul the health care system.

"We got a crazy situation where Obama is talking about the cost of medicine but he said, 'I don't believe in caps,' " complains Dr. Dennis Agliano, past president of the Florida Medical Association. "If you don't have caps, the sky's the limit and there's no way to curtail those costs.''

But malpractice lawsuits account for less than 1 percent of the U.S. health care tab. The same is true in Canada.

"The trends we're seeing comparing our data to the American data is that the frequency of litigation against physicians has been progressively falling over the last 10 years,'' Gray says.

• • •

In 2007, Canadian doctors were hit with 928 legal actions, a 17 percent drop from 2003. Only about 100 cases a year go to trial.

One reason: Canadian law firms, unlike U.S. firms, often require plaintiffs to pay for an initial investigation to determine whether the claim has merit. That cost discourages many people from pursuing a lawsuit.

Another deterrent, plaintiffs' attorneys say, is that the Canadian Medical Protective Association is aggressive in defending its members because it is in the unique position of insuring virtually all of the country's 76,000 or so doctors.

"It's different from the U.S., where you have a great number of private insurers, each with a different corporate mentality to litigation,'' says Richard Halpern, a Toronto attorney.

"Here, we don't see nuisance payments to settle cases, we see where the CMPA is prepared to throw all the money at it to defend it no matter what it's worth. Litigation in Canada is therefore very, very expensive, and there are very few plaintiff's lawyers with the wherewithal to carry through with these cases.''

The association's legal fees have risen, but its track record is strong: Of the cases tried in 2007, judgments went in the patient's favor 25 times and the doctor's 70 times. The median amount of damages was about $91,000.

Although Canada allows jury trials, the few cases that go to court are usually tried in front of a judge.

"Some of my cases are too complex for a jury, and it does prolong the trial and use up a lot of resources,'' Halpern says. "On the other hand, I do believe we don't make enough use of juries. Juries may be more sympathetic, particularly when you do obstetric cases. There's the sympathy factor.''

Halpern is awaiting a judge's ruling in a case in which a baby was born with cerebral palsy because a nurse failed to realize the baby had been starved of oxygen in the womb. Halpern would be surprised if the judge awarded punitive damages.

"We generally don't pursue that here in Canada because most medical cases involve negligence,'' not intentional wrongdoing, Halpern says. "I've never seen a punitive damage award in a medical malpractice case.''

• • •

Florida's largest malpractice verdict came in 2006 when jurors awarded $217 million in punitive and other damages to Allan Navarro, a Tampa man who became a paraplegic after suffering a stroke misdiagnosed as sinusitis.

On appeal, Navarro settled for less but the case fueled the debate over tort reform and the litigiousness of American society. Canadian lawyers can advertise, though it is rare to see billboards or TV ads like those in Florida.

"This country has a system in which mass advertising of services encouraging individuals to file lawsuits, meritorious or non-meritorious, is a mentality that just isn't present in countries like England and Canada,'' says Dr. Robert Yelverton, chief medical officer for Women's Care Florida.

The company, with 107 doctors in Central Florida, requires patients to waive their right to a jury trial.

Despite the push for tort reform, the facts don't warrant what Public Citizen, a nonpartisan research group, calls the "politically charged hysteria surrounding medical malpractice litigation.''

The number of U.S. malpractice payments in 2008 was the lowest since creation of the federal National Practitioner Data Bank, which has tracked payments since 1990. And the average payment — about $326,000 — was the smallest in a decade.

Florida has limited attorney fees and imposed a cap, generally $500,000, on noneconomic damages. Partly as a result, malpractice insurance rates have dropped, though they are still far higher than those in Canada.

For orthopedists who do risky spinal surgery, the annual base rate for $1 million in coverage is $72,000 in the Tampa Bay area and $140,000 in Miami. The most any Canadian orthopedist pays is about $12,000.

"I do know that most of my orthopedic colleagues have no malpractice insurance and can't afford it,'' says Dr. Michael Wasylik, a Tampa surgeon and past president of the Hillsborough County Medical Association. "That's one way not to get sued: don't have insurance.''

The downside of that strategy: Florida doctors who "go bare'' on insurance can have their license suspended if they are unable to pay a judgment of up to $250,000. (Wasylik is insured.)

While malpractice litigation accounts for only about 0.6 percent of U.S. health care costs, the fear of being sued causes U.S. doctors to order more tests than their Canadian counterparts. So-called defensive medicine increases health care costs by up to 9 percent, Medicare's administrator told Congress in 2005.

"How much money is spent in this country to assure that every test known to man is done to avoid a lawsuit?" asks Yelverton of Women's Care Florida. "Defensive medicine is not talked about nearly enough, although the costs are huge."

Susan Taylor Martin can be reached at [email protected]

Comparison of malpractice insurance rates

Toronto Miami Tampa Bay
Orthopedic surgeon $10,485 $140,000 $72,000
Obstetrician $36,353 $191,000 $98,000
Neurosurgeon $29,233 $237,000 $121,000

Sources: Florida Orthopedic Society and Canadian Medical Protective Association. All figures in U.S. dollar amounts. U.S. figures are base amounts.

Canada keeps malpractice cost in check 07/26/09 [Last modified: Saturday, August 1, 2009 9:51am]
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