WV Executive

In 2003, West Virginia physicians and their patients were in trouble. Some doctors began leaving the state while older, experienced physicians were retiring sooner. Many younger recruits and graduating medical students considered West Virginia an unsatisfactory place to establish a clinical practice.

The reason for this shift in perspective is rooted in a double- to triple-digit rise in professional liability insurance premiums or, simply, non-renewal of insurance policies. It was becoming increasingly difficult for doctors to find liability coverage. Major insurance carriers no longer wanted to insure physicians-especially those in high-risk specialties such as obstetrics, surgery and emergency medicine. One study found that 34 West Virginia hospitals had lost an average of five percent of their medical staff.

With doctors worrying about the availability and affordability of insurance coverage, the ability of West Virginians to access quality health care was being compromised. Obviously, something needed to change. Concerned West Virginians tried to solve the problem by utilizing using a variety of approaches. In one effort, through a strong grassroots campaign led by the West Virginia Hospital Association (WVHA) and other groups, West Virginia became a national leader in medical liability reform with passage of House Bill 2122 during the 2003 legislative session.

Legislative Reform

House Bill 2122 has been considered the most comprehensive liability reform bill enacted by any state in the past 30 years. The cornerstone of the legislation is a series of fundamental changes to West Virginia's tort laws. This legislation allows West Virginia to enjoy a comprehensive set of revised medical liability statutes and standards which will help ensure access to patient care, provide a fair and prompt means of resolving medical liability claims and provide physicians an environment in which to practice that is comparable to, if not greater than, other states.

The bill is built on three primary platforms: structural reforms in the tort system; formation and funding of a physician's mutual insurance company; and near-term medical liability insurance rate relief for physicians. The bill also contains additional elements designed to improve the quality of health care in West Virginia.

House Bill 2122 brings balance, predictability, stability and fairness to West Virginia's medical liability system, allowing the state to recruit and retain physicians-a fact confirmed by a recent study conducted by the Department of Health and Human Services' Agency for Healthcare Research and Quality. The study showed that states with limits on non-economic damages in medical lawsuits have nearly 12 percent more physicians per capita than states without such caps. The legislation includes a $250,000 cap on non-economic damages, with specified exceptions for certain prescribed situations it may be increased to $500,000. There is also a separate limit for trauma services, and it covers economic and non-economic damages. "The study confirms and quantifies the association between reasonable limits in medical lawsuits and the supply of physicians available to treat patients who need them," says Tommy Thompson, secretary of the United States Department of Health and Human Services.

Led by the West Virginia Hospital Association, concerned groups formed the West Virginia CARE Coalition in support of doctors, hospitals, health care providers and West Virginian citizens. The goal of the coalition was to urge the governor and state legislature to address medical liability reform, the lack of which was decreasing access to health care, driving doctors out of West Virginia and increasing health care costs. The CARE Coalition included, among others, the West Virginia State Medical Association, the West Virginia Health Care Association, the West Virginia Roundtable and the West Virginia Business and Industry Council. "The CARE Coalition worked to put the interests of patients first and focused on assuring access to healthcare through an extensive grassroots advocacy campaign," says Tony J. Gregory, WVHA's director of communications and legislative affairs. Gregory, who was highly active with the CARE Coalition, adds, "We worked to highlight the gaps in the medical liability system and to encourage every West Virginian to work together to ensure access to healthcare by supporting reform legislation."

In West Virginia, the benefits have already begun to show. Doctors who attended White Coat Day at the Legislature in 2004, a year after the bill was passed, proved they understood the importance of protecting the malpractice reforms that lawmakers won last year. "What I'm hearing physicians say to legislators is, 'Thank you,'" says Senator Evan Jenkins, executive director of the West Virginia Medical Association. "The medical community is already feeling the positive effects of the medical malpractice legislation. Recruitment is up; access to care is improving."

Before House Bill 2122 was passed, for example, Reynolds Memorial Hospital saw several physicians leave or take early retirement. The hospital, which had served the small Marshall County community for more than a century, was suddenly found bereft of its gastroenterologist and cardiologists, causing the 100-bed facility to scramble for replacements. Jay Prager, chief operating officer of Reynolds Memorial, says hospital officials searched for a cardiologist for nearly nine months. They contacted medical residency programs both in and out of state, networked and then contracted with several contingency firms before retaining the recruiting services of Merritt, Hawkins & Associates. After House Bill 2122 was enacted, the recruitment firm located and placed a cardiologist interested in moving to West Virginia because of the state's private practice opportunities and recent advances in medical liability reform.

The changes, which became effective in July 2003, include non-economic damage caps between $250,000 and $500,000, depending upon the injury. Since then, Wheeling Hospital has recruited four family physicians and one ear, nose and throat specialist. One neurosurgeon, Dr. Ronald Hargraves, has also come to the area to perform brain and spine surgery at both Ohio Valley Medical and Wheeling Hospital. Previously, Wheeling did not have a neurosurgeon for two years as a result of physicians discontinuing their surgical practices. Martinsburg's City Hospital recruiter, Carl Joseph, says the facility has had nearly one physician interview per week compared to three-a-quarter in 2003

"In the 1980s, physician recruiting was easy," says Bob Gray, vice president of business development at Thomas Memorial Hospital in South Charleston. "Then, physicians began to leave because of the worsening medical malpractice climate. When legislation passed (House Bill 2122), word spread quickly. We were getting queries asking 'What have you done with the med mal situation in your state?' We recruited two physicians from California and one from Georgia 60 days after the legislation had passed. House Bill 2122 was physician-friendly malpractice reform. The result was fewer doctors leaving the state and doctors seeking to establish practice in West Virginia. The door had opened again. Now states such as Pennsylvania and Florida are experiencing a medical malpractice crisis and are losing doctors."

The year 2003 was busy for medical liability reform. The American Tort Reform Association (ATRA) recently reported 2003 the most successful year for enactment of state civil justice reform legislation since 1995. At mid-year, 20 states already had enacted laws; 19 laws were enacted by the conclusion of 1995. "Policymakers across America were emboldened this year," says Sherman Joyce, president of ATRA. "The need to enact reforms has overcome the political muscle of the personal injury bar."

The 20 states that enacted civil justice reforms include: Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Louisiana, Minnesota, Mississippi, Montana, North Carolina, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. Some states called special sessions in order to advance reforms. West Virginia, however, enacted the most comprehensive reform legislation to date, taking a 30-year leap forward in medical liability reform. Not since California passed its Medical Injury Compensation Reform Act of 1975, which was a model for House Bill 2122, has any state established itself as a leader in this area. With the passage of House Bill 2122, West Virginia set the gold standard for medical liability reform.

Passage of the Patient Injury Compensation Fund (PICF) in the 2004 session is directly linked to the passage of House Bill 2122. The legislation is necessary to safeguard the caps on trauma care and the elimination of joint liability. Both of these provisions were put into place last year and are either directly or indirectly contingent upon the implementation of the PICF. Funding of the PICF is provided through redirection of the premium tax payment of the Physicians Mutual Company that was also established in 2003.

The most serious challenge we face today is to prevent these potent liability reforms from being overturned by the West Virginia State Supreme Court. A petition protesting the reforms was filed in June 2003, and a second challenge was brought to the West Virginia Court of Appeals late last summer. Fortunately, neither was successful, but other challenges await the outcome of the November elections.

Since passage of the liability reform legislation in 2003, preserving this hard-won legislation has become a priority for the WVHA. It has implications for the economy of the state, access to medical care and to the health of our population. This is so vital that it requires the community's most vigilant protection.

About the Author:

Mr. Steven J. Summer is the president and chief executive officer for the West Virginia Hospital Association. Prior to coming to West Virginia, he had been with the Maryland Hospital Association where he served as vice president and senior vice president for professional activities.

After graduating from George Washington University in 1974 with a master's degree in business administration in health care administration, Mr. Summer spent two years as an assistant director with the Association of American Medical Colleges, Council of Teaching Hospitals in Washington, D.C.

Mr. Summer is a member of the Governor's Business/Labor Coalition and chair of the American College of Healthcare Executives chief executive officer Committee. He currently chairs the West Virginia Public Broadcasting (Radio) Friends Board, serves on the Charleston Convention and Visitors Bureau Board and is a member of the West Virginia University College of Business and Economics Visiting Committee. Mr. Summer has served as chair of Big Brother and Big Sister organizations in both Maryland and West Virginia and was matched as a big brother for more than 10 years.

Mr. Summer currently chairs the American Hospital Association's Task Force on Professional Liability Reform. He also serves on the American Hospital Association's AHAPAC Steering Committee and is an AHA Foster G. McGraw Prize Reviewer.

Mr. Summer holds adjunct faculty appointments at West Virginia University Health Services Management EMBA and Johns Hopkins University School of Hygiene and Public Health. The author of articles in many business and professional journals, Mr. Summer is also a frequent lecturer at the state and national level. He has been the featured speaker on health care issues at many local, state and national meetings.

The West Virginia Hospital Association's membership consists of 73 hospitals and health systems. Its mission is to provide leadership in health care advocacy, representation, education, information and technical assistance.