INTERVIEW OF DR. JAMES TASSE ON WDOK, FM 102.1, ON CLEVELAND CONNECTION WITH JIM MCINTYRE, JUNE 29, 2003, REGARDING MEDICAL MALPRACTICE:

Announcer (music): This is Cleveland Connection featuring conversations with some of the people who make a difference here in northeast Ohio. Here's your host, Jim McIntyre.

Host: You may have seen coverage of a rally recently in Cleveland, a rally by the Physician Advocacy Group to address a healthcare crisis that we've been hearing about, one that involves malpractice insurance, skyrocketing rates, tort reform - all these terms that have come into the vernacular recently. Today on Cleveland Connection from the Physician Advocacy Group is James Tasse. Hello Dr. Tasse. Where do you practice medicine?

Dr. Tasse: Well good morning. I practice on the west side of Cleveland, have been doing so for about fifteen years.

Host: And your specialty?

Dr. Tasse: I'm a general surgeon, trauma surgeon. I do some surgical critical care.

Host: And is your practice threatened by the price of malpractice insurance premiums?

Dr. Tasse: Well my practice is threatened just like everybody else in greater Cleveland. For some reason Cuyahoga County ranks in the top five in medical liability awards by juries and every single one of us feels like tomorrow might be the day that we are going to have a serious liability problem if there's a bad outcome in seriously injured or ill patient.

Host: I've heard that Cuyahoga County juries are among the most generous in these types of cases. Why do you think that is?

Dr. Tasse: You know we don't know. But I can tell you that insurance companies avoid Cuyahoga County like the plague. Nobody wants to offer insurance in Cleveland. I talk to doctors every day who have been cut off from their insurance company. And for some reason we just have a very high area of awards. The juries are giving out greater than a million dollars at the median level for cases that are actually heard by the jury.

Host: Have your insurance premiums gone up?

Dr. Tasse: My premiums, everybody's premiums. Absolutely.

Host: In leaps and bounds and double and triple area?

Dr. Tasse: Well, I talk to my colleagues and we're talking about, you know, things like for a general surgeon $20,000 three four years ago now going to 90 or $110,000.

And it's kind of hard to analyze that. I think to myself, how can the public tell whether that's a large amount, a small amount. Physicians make a lot of money so they should be able to absorb it. But the fact of the matter is that I hear from docs who say that they are having difficulty making ends meet, and that it's not worth it. Cardiothoracic surgeons are even higher, neurosurgeons are higher.

Host: ObGyn?

Dr. Tasse: ObGyn. You know, these fellows and ladies are not just either leaving Cleveland and going to places like Wisconsin and Indiana, but the ones that stay behind are changing their practices drastically. At our rally/seminar that we did last week I did surveys and I found five ObGyns who dropped the Ob part, obstetrics part, completely and they're just going to do gynecology.

Host: Does that reduce their premiums or just their risk?

Dr. Tasse: Well, I think both, and the fact of the matter is what we found in analyzing this around Cuyahoga County is that the people that do Ob, the portion of their malpractice insurance and the reimbursement that the average Ob gets for delivering babies comes out as a wash. So in other words they don't make any money and all they do is open themselves up to a big malpractice lawsuit.

Host: So what's the solution?

Dr. Tasse: Well, I tell you, I formed this group, the Physician Advocacy Group, a few months ago because we need, I think, to open a discourse and a dialogue with the public. I think reform measures have to occur, not just between doctors against attorneys, not just between doctors and insurance companies, but I agree with a fellow by the name of Philip Howard who was in Time Magazine last week where the whole issue was devoted to malpractice. And he was our keynote speaker at our rally last week. Philip Howard started a coalition called "Common Good". And he has a theory, he's an attorney - but his feeling is that we have a lawsuit culture that's out of control.

Host: Oh, no doubt.

Dr. Tasse: And at the very base is the abdication of authority by principals of schools, teachers, judges. No one is really supported in their authoritative role. In other words, anyone can be challenged. Any citizen in this society can sue any other citizen at any time for any thing. And that's the way law is made nowadays. It's not made as much by the legislature. And what happens because of this supposed right? Philip points out that this is actually an infringement on our freedom because what it does is it makes everyone look over their shoulder. Someone falls on your sidewalk, somebody falls off the monkey bars in the park and what happens - the monkey bars disappear from the park. The high diving boards are gone. Peanuts disappear from some of the airlines because somebody had an immediate allergic reaction.

Host: Mm, hmm.

Dr. Tasse: And so the reaction is that the whole society suffers because the assumption of risk has gone away. And how that applies to medicine is that the juries have awarded high awards to almost anyone that has a bad outcome. This may partly be due to the fact that we all feel that if something bad happens to us, somebody should pay. And that's not to say that some patients aren't injured due to negligence because we know that happens and all of us physicians feel that those patients should be compensated. But the current system is just out of control.

Host: There have been proposals to put limits on these jury awards. I think $300,000 was the last figure I heard.

Dr. Tasse: Well, it's $250,000 in Ohio. We did pass tort reform. $500,000 for catastrophic. And people ask me, they say: "Dr. Tasse, tort reform was passed. Didn't that take care of it?" And the fact of the matter is that we believe that's just a bandaid. All that's doing is putting caps on non-economic damages. Non-economic damages are punitive damages. They're the ones where the jury can basically say one week we feel the pain and suffering is worth twenty million dollars, and next week the same case heard before a different jury might be worth a million dollars or it might not be worth anything at all. So the legislature, doctors, lawyers, everyone kind of agreed that we had to put some caps on those unpredictable unguided types of damages. It's very difficult to believe that a lay jury can understand the complexities of some of these medical cases.

Host: But that's the job of the lawyers, right?

Dr. Tasse: Well, we'd like to say that in its purest sense that's what law is all about. That we have a system where you're judged by your peers. Where the plaintiff can bring in a doctor who's an expert on one side and the defense can bring in a doctor who's an expert on the other side. So what does the jury hear? The jury hears articulating by lawyers who are tremendous at being able to use the sound bite.

Host: Um, hmm.

Dr. Tasse: And being able to convince and many times win a case not based on the veracity of what happened in that medical case, but based upon his performance. And this is what lay juries sometimes see. And to have the one doctor versus the other doctor - it's very difficult for a jury to make a decision based on a complicated case. I'll give you an example. There was recently a case on the west side of town that was lost by four doctors, 9.5 million dollars. A 72 year old woman with terrible heart disease, kidney insufficiency, what we call a 20% ejection fraction, which should be up around 60% or 80%, how much blood actually is put out of your heart with every heartbeat.

Dr. Tasse: Hers was only 20% so very poor function of the heart. Probably only had a couple years to live. Would the heart surgeon take this case and replace the valve? Well, he took the case. And what happened? The patient came off the surgery, did OK, got to the Intensive Care Unit and never was able to get off the ventilator. Wound up with a tracheostomy, high cuff pressures in the tracheostomy tube, tracheo-esophageal fistula, aspiration pneumonia, use of epinephrine drips, later wound up with sepsis, shock, amputation of the extremities, was in the hospital for eleven months and had terrible complications. But none of the care that was rendered was below the standard of care. However, the case was taken to court. Originally the plaintiff was asking for

45 million dollars, later whittled down to 23 million dollars, and the jury finally awarded 9.5 million dollars. I knew those doctors were going to lose that case. I knew they were going to lose it because of a sympathy factor for this poor woman as to her bad outcome. The jury was going to feel that she should have some money to compensate for all the suffering that she underwent. Insurance will pay. You know, this woman is going to have to be on dialysis for the rest of her life. It's going to cost hundred of thousands or millions of dollars and so we should pay. And the problem with that is that the doctors were not below the standard of care, but to get to the point where you give this patient money you have to say that they were. So you find a hired gun from California, pay him big money, and he even identified himself as "somewhat of an expert". And the plaintiff attorney was one of the best in northeast Ohio. I knew they were going to lose this case so I went to the case. I visited this case almost every day and, in fact, I tried to get some doctors together. We had twenty or thirty different doctors that were going to come and just sit and watch this case in the back of the courtroom, not to influence the jury, but to watch the mechanics of how wrong it all is.

Host: Um, hmm.

Dr. Tasse: And this lay jury listened to the complicated medical issues and didn't have a clue, I'm convinced, as to what they were talking about. But what they heard was the plaintiff attorney articulating very well, and then taking each one of the doctors, cross examining them, getting them to slip up on some articulation, yelling at them and saying: "I'm not going to let you lie in front of this jury, doctor." And the doctor just perplexed. But the point of the matter being I think it was way over their head. And Philip Howard, one of his reforms in recognizing this suggests that medical liability justice should be a tribunal of judges who have a special knowledge in medicine.

Host: Is there a model for this?

Dr. Tasse: There is in patent court. The judges there have to have a special knowledge in patent. And I think there's one or two others. Other reform measures that have been suggested have been mandatory arbitration with physician panels so that the physicians are reviewing them. And you say, "Well, aren't they going to just buddy buddy and let their buddies off?" I mean, it would have to have some teeth in it but the fact of the matter is, honestly, if this system doesn't get fixed the doctors are going away. They're not happy. And you say, well, the patients have to be happy too. I agree with that. They need to be compensated if there's an injury. But I'm in the doctor's lounge, I go to meetings, and I hear what these doctors are saying and if I could put a microphone in the doctor's lounge, part of the goal of my new group, Physician Advocacy Group, would be fulfilled. I want the public to start hearing what the doctors are saying, what they feel, what their thoughts are, the cases that they're no longer going to take. They're shying away from complex cases. Law is supposed to teach what behavior should be. What the law did in this particular case that I mentioned to you is it taught the surgeons and the doctors to be afraid of complex cases. And so, if law doesn't teach then we have to get a system where there is reliable reproducible justice.

Host: The tort reform that imposed limits on malpractice awards was a state level of reform. Do you anticipate reform coming from the federal level?

Dr. Tasse: Well certainly President Bush is working on this and it has passed the House of Representatives several times but it never seems to get through the Senate. Maybe the time has come where we realize that our lawsuit culture is out of control and that for the greater good we have to put some limits on the awards. There may be a sentiment in our society that starts to realize this. I mean, it's the way it is in other countries, in the Netherlands, in New Zealand, in other places. Now, granted those places have more socialized medicine than we have but we're bankrupting our system. And if you want to believe that it goes even further into business where individuals can pursue a lawsuit that in some cases will put a whole business out of business. And it's affecting our welfare and our economy. Depending on what side you line up on I think there's a chance that President Bush's bill would be supported - not his bill, but I mean his support of the bill.

Host: Do you know of any physicians who personally made the decision to stop practicing medicine or, at least, stop practicing medicine here because of the high cost of malpractice insurance?

Dr. Tasse: Many.

Host: You do?

Dr. Tasse: In the past year we have four heart surgeons that have left the area. I have a trauma surgeon, I run the trauma team out on the west side at one of the hospitals out there, and he left because of the insurance and he's in his young forties. There are ObGyns, like I say, that have stopped doing Ob and are just doing Gyn. At the seminar/rally we gave a sample questionnaire out to the doctors and asked to give me names of the people that they know of that have left the area or who have retired and I think the list is about twelve. A stroke team wrote a letter to a hospital here in Cleveland saying we're no longer going to cover acute strokes because stroke protocols say a CT scan has to be done within thirty minutes, the neurologist has to be there within an hour. And they say the lawyers are going to, if we get there in an hour and fifteen minutes and something happens bad to the patient, the lawyers are going to show us our own protocol and say "Here's your own protocol and you violated it." So we'll still be available to be called for strokes but we're not going to have an official stroke team. You know, the number of cases are increasing and increasing, so it's not just that they're leaving but it's a whole attitude thing. The doctor-patient relationship - when I started I wanted the toughest cases. Give them to me - trauma, surgery, critical care - and when I get called I still show up, but going on in my mind is liability. Everything is potential liability. And there's another angle to this too which we made a part of our rally/seminar which was patient safety. I had a number of docs in Cleveland that said we've got to go on strike. You know, if you go on strike you've got to fill in the line that says we'll go off strike when . . . blank.

Host: Right. There has to be an endpoint.

Dr. Tasse: And I thought there wasn't. We need to address it in a cognitive sensible way. So I said instead of a strike let's have this rally/seminar and I'll bring in national and local experts in three specific areas to address what we think are the most important. And one, of course, is malpractice. The second one is patient safety. The third one is reimbursement. Patient safety because we're hearing on the news from the Institute of Medicine reports that 44,000 to 98,000 deaths a year in hospitals are caused by medical errors. 3.7% of all discharges from hospitals wound up with some type of medical error that led to injury. And in 1% of the discharges there was a negligent medical error. And so these 44,000 to 98,000 deaths a year are a serious issue and they've been put in front of the public, rightly, and physicians are very interested in looking into them. I mean who more cares about the physician, I mean, the patients than the physicians? And the attorneys will say, "We have to be taking care of the patients because we care about the patients." It's the physicians who care about the patients.

Host: Is there an internal group that polices physicians?

Dr. Tasse: Well certainly for years and years the State Medical Board polices physicians. And this has to do with medical licensure, drugs, alcohol, serious malpractice problems on a recurrent basis, things of that nature. So we're talking not so much about policing but finding systems. The Institute of Medicine says we should get away from the fault-finding because all that does is inhibit people from disclosing errors and sharing error information. And most errors are systems problems. If there's a drug error it could be anywhere from the pharmacy on down to the nurse giving it on down to the doctor ordering it. And so improving this aura that hangs over the physicians by getting rid of the fault finding atmosphere is something that would help physicians then develop improved ways of sharing error data.

Host: But how do you find fault if you don't investigate?

Dr. Tasse: Fault has to continue to be found in the sense of peer review, but it shouldn't be in the open court where from four to seven years a physician is dragged through a medical liability process, as I mentioned before, that's unreliable, that doesn't come up with reproducible results, that is heard by a lay jury which doesn't understand the complexities of a case. Cases should regularly be reviewed by other physicians. It should have some teeth in it. Again, this goes down to the Philip Howard common good, common sense approach, where society has got to re-instill respect for the authority of those that are given the authority. A principal of a school should be supported. Now, by the same token, they've got to do their job. A judge in a courtroom has got to be supported. The judges, right now they either encourage you to settle or they let everything go to the jury. They've got to take authority and say, "This case doesn't belong in here. Previous precedent and law shows that, you know, get out of my court." And I think this should apply in hospitals where the chairman of a department of surgery, for example, has demands to do a tough review of physicians but at the same time doesn't have to worry that he's going to get sued if he tries to throw a surgeon off the staff. What it's going to take is marching hand in hand with a public who understands the problem and, quite frankly, at this point I don't think the public has a clue.

Host: Maybe when they lose their personal care physician or the heart surgeon that they're referred to then they'll get a clue.

Dr. Tasse: Even if that doesn't happen immediately, if they go to the emergency room and there's no longer hand surgery, or they're in a car accident and there's a fracture and no one wants to take the case. I mean, there's reactions that are occurring all over the country based on liability. It just so happens that we're in one of the highest ranking areas in the country.

Host (music): It's a problem that's not going away any time soon, a problem that's being addressed by the Physician Advocacy Group with Dr. James Tasse. Thanks for being with us today.

Announcer: You're listening to Cleveland Connection with your host, Jim McIntyre.