Damage Caps and Medical Malpractice VII

My next set of posts will be on the impact of damages caps on access to medical services. Because it is hard to measure access directly, and most of the available measures lack political salience, the debate usually focuses on the number and specialty of physicians practicing in the state. This is a problematic measure for all sorts of reasons, but let's just take it as a given for now.

The focus can get extremely specific. In the debate over enacting a damages cap in Illinois (ultimately enacted in 2005, and currently under review by the Illinois Supreme Court), as this article observes, "the phrase 'there are no neurosurgeons south of Springfield' came to represent the threat of the medical liability issue. . ."

This claim was picked up and repeated by physicians, legislators, and tort reform advocates. Consider a few examples.

There's this article, titled "Illinois physicians say insurance rates are driving them out of state," and quoting a family physician (Dr. Mark Dettro):

"We are losing all these doctors to other states where they have caps on pain and suffering," Dettro said. "There will no neurosurgeons south of Springfield in Illinois. If you have a car wreck in Southern Illinois then the odds aren't very good for you."

Dr. Ed Ragsdale was quoted to the same effect in this article:

This has been an uphill battle. We’ve lost all our neurosurgeons south of Springfield and it’s even affecting those in Chicago."

It wasn't just doctors. Legislators picked up on this talking point. U.S. Representative Mark Steven Kirk issued a press release that repeated the claim, and asserted that the problem was spreading:

South of Springfield, there are no neurosurgeons treating patients suffering from head traumas," said Kirk. "This crisis of care is now spreading to Chicago's suburbs. With only three neurosurgeons caring for patients in Lake County, we face the growing threat that our doctors will not be there when we need them most. If we do not enact reforms soon, patients will die.

Tom Cross, the Illinois House Republican leader repeated the claim in a eight page briefing package on the need for medical liability reform.

Finally, a prominent magazine for hospital trustees, repeated the claim and provided some geographic context.

According to the American Association of Neurological Surgeons, high malpractice premiums mean there are currently no neurosurgeons practicing south of Springfield, Ill.--an approximately 200-mile gap to the Missouri border.

You hear variations of such claims a lot in tort reform debates. I'm going to spend some time outlining what we found in Texas when we took a look at the access issue. But first, let me make a few preliminary points about such claims. Here’s a couple of questions worth asking, the next time you hear a claim like this:

1. Is the claim true? Are there, in fact, no neurosurgeons in Illinois south of Springfield? As far as I can tell, this appears to have been an accurate claim — but anyone who spends any time around political debates knows that the claims one hears sometimes bear little resemblance to objective reality. So, its worth asking "how do you know?" The fact that the American Hospital Association issued a undated fact sheet that says there is one neurosurgeon south of Springfield, and President Bush gave a speech on January 5, 2005, stating that there were two neurosurgeons practicing south of Springfield suggests that some additional fact checking might be in order.

2. Even if the claim is true, is it framed in a way that is nonetheless misleading? Might using state borders (no neurosurgeons in Illinois south of Springfield) to define the issue be problematic, when demand for medical services does not necessarily respect those borders? Carbondale, Illinois, where Southern Illinois University School of Law is located, is 176 miles by car from Springfield, and 107 miles by car from St. Louis. If it turns out there are plenty of neurosurgeons in St. Louis, should we care (as much, or at all) that there are no neurosurgeons in Illinois south of Springfield?

3. To what extent is the in-state demand for neurosurgical services being met by other specialists? This question is not applicable to a fair chunk of what neurosurgeons do — particularly in trauma cases — but it is worth asking about access claims regarding many other specialties, where the same or substitute services can be performed by other specialists.

4. How tight is the fit between the remedy and the problem? If we enact a damages cap, will we get more neurosurgeons south of Springfield? How many more? Will they be good neurosurgeons? Could we get too many neurosurgeons south of Springfield?

5. If we are convinced we want more neurosurgeons south of Springfield, Is a damages cap the best way to do that? Would a direct subsidy for neurosurgeons willing to locate south of Springfield be more cost-effective? If we have a fixed amount of $$ to spend on the problem, is it better spent on subsidizing relocation of neurosurgeons, or of patients needing neurosurgery (by subsidizing a system of air ambulances, for example)?

6. What are the other consequences of adopting a damages cap, apart from the effect on the supply of neurosurgeons south of Springfield? What will the effect be on other specialties, and the way in which health care is delivered? What will the effect on patients?

These are the kind of questions that it often makes sense to ask about policy initiatives — particularly ones framed by the use of salient anecdotes, such as "there are no neurosurgeons south of Springfield."