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Medical liability issues pull down state’s emergency care ranking

Maryland’s medical liability environment is the most significant issue affecting residents’ access to emergency-room care, according to a report released Thursday by the American College of Emergency Physicians — a finding disputed by at least one lawyer who specializes in medical malpractice cases.

In the physicians’ 2014 “State-by-State Report Card,” Maryland received a lower overall score than in 2009, the last time the report was released.

Maryland received high marks in three out of five categories, but poor performance in two categories — medical liability and access to emergency services — pulled its overall grade down to a C.

The state slipped from its spot as No. 4 in the country in 2009 to No. 10 this year, based on overall performance. The country as a whole is also slipping, according to the report. In 2009, the nation earned an average grade of C-. This year, it got a D+.

Dr. David Hexter, president of the Maryland Chapter of ACEP, said Maryland’s medical malpractice policies and high premiums for liability insurance have raised the cost of emergency care and put the state’s ER physicians on the defensive. They have also contributed to the state’s access-to-care issues, he said.

Maryland received an F for its medical liability environment and a D for access to emergency care. In both categories, the state did slightly worse than in 2009, when it received a D- and C-, respectively.

The report noted that in medical malpractice cases, Maryland plaintiffs receive a “relatively high” average award — $374,121 — and that such awards are frequent: 3.4 awards per 100,000 people.

This leads to higher premiums for medical liability insurance, Hexter said. According to the report card, the average annual premium for specialists in Maryland is $96,807, almost twice the national average.

“That sort of environment results in physicians practicing defensive medicine,” he said. “And it can impair access to care, particularly to certain specialties such as neurosurgery and plastic surgery when we need to call upon those specialists to provide care to our patients in the emergency department … but they’re not there because they’ve given up their privileges to practice at that hospital.”

The report ranked Maryland’s liability environment 47th in the nation, but some people dispute the notion that physicians in Maryland have it any tougher than their counterparts in other states.

Andrew G. Slutkin, a senior partner at Silverman, Thompson, Slutkin & White LLC in Baltimore who specializes in medical malpractice, said that in his experience, awards in Maryland “are not significantly higher than in other states either in terms of settlements or verdicts.”

There are several possible reasons why Maryland’s average malpractice award may be on the high end. Slutkin suggested that because Maryland has “a relatively strong and highly paid workforce” and because there is no cap on economic damages such as lost income, plaintiffs’ awards end up being larger.

He also came up with a possible reason for the frequency of malpractice cases here. Maryland is home to Johns Hopkins Medicine and the University of Maryland Medical Center, which attract patients from across the globe.

“When you boost the number of patients, you increase the amount of health care provided, so you would expect an increase in the number of claims,” Slutkin said.

According to the report card, Maryland also has issues with access to emergency services. Its problem areas include long emergency department wait times, high occupancy rates in hospitals (which can make it difficult to find inpatient beds for patients admitted through the emergency room) and not a lot of emergency departments per capita (8.3 per 1 million people), despite relatively high rates of emergency physicians, the report said.

Nevertheless, in fiscal 2012, there were nearly 2.7 million visits to the nearly 50 emergency departments in Maryland, Hexter said.

“And that’s out of a population of 5.8 million,” he added. “So people in Maryland are very familiar with their emergency department.”

The state performed well on other measures more closely related to patient care. For example, Maryland was No. 1 in the country for emergency care quality and patient safety, according to the report. Maryland also ranked highly in disaster preparedness and public health/injury prevention.

Maryland does have some liability reforms in place. For example, the average award could be much higher without Maryland’s cap on non-economic damages, a limitation that exists in most states.

Maryland is also one of a handful of states that allow health care providers to use the contributory negligence defense: If the plaintiff was at all negligent, he or she loses the case.

Last year in the General Assembly, several bills that dealt with medical liability reforms were discussed but ultimately went nowhere. Several people said it’s likely that the same issues will resurface in Annapolis this year.

“We’re very fortunate to at least have some reform here in Maryland, and we’d hate to see the cap get weakened or removed,” Hexter said. “And considering we already scored an F in medical liability, now would be a bad time to roll back the reforms we do have in place.”

But Slutkin said Maryland’s environment is already plenty fair to physicians.

“Every few years, the insurers and physician and hospital organizations try to enact additional restrictions in medical malpractice cases because it’s in their financial interest,” he said.

“But we’ve got limits on the kinds of cases that can be brought, we’ve got caps, we’ve got contributory negligence, we’ve got certificate requirements — so when you put all that together, you see that we have very significant reform that’s been in place for decades.”

The ACEP report card looked at 136 measures within the five categories. The grades in some categories are weighted more heavily than others when determining the overall grade.