Medical liability crisis in mammography: The Florida experience

Mammography remains the best screening study to detect breast cancer and has been shown to reduce breast cancer mortality by one third.¹ Unfortunately, access to mammography services is diminishing in many parts of the country. This is particularly problematic since the U.S. General Accounting Office (GAO) estimates that 1 million additional women become age-eligible for screening mammography each year.² The American College of Radiology (ACR) reported that more than 700 mammography centers have closed nationwide since 2001.³

In Florida, it is estimated that 100 mammography centers have closed since 1994 (Ted Burnes, American College of Radiology, personal communication, April 18, 2004). These closures have created an access problem in some parts of the state. It is not uncommon for a patient in Florida to wait 6 months for a screening mammogram and up to 3 months for a diagnostic study. Some facilities, such as Memorial Hospital in Jacksonville, have discontinued screening mammography in order to facilitate timely access for patients requiring diagnostic mammograms.

The “failure to diagnose” breast cancer is the most prevalent malpractice claim among all physicians in the United States and the second highest payout for malpractice claims, next to birth-related injuries.⁴ Lawsuits related to mammography are the most common malpractice claim filed against radiologists.⁵ The overall indemnification for all breast cancer litigation in 2002 averaged $438,000, which had increased 45% since

The American Medical Association designated Florida as one of the “crisis states” for medical liability.⁷ In 2000, the frequency of claims in Florida was 36% above the national average.⁸ A 2002 study reported that medical liability losses per physician in Florida were 50% higher than the national average.⁹ The untenable medicolegal climate is cited as a primary reason for the mammography access problem, which is developing into a major healthcare crisis in the state.

In Florida, there is a shortage of radiologists willing to interpret mammograms. This is partly attributable to the lack of interest among radiology residents. A recent poll among residents cited medical malpractice concerns as a primary reason for not pursuing breast imaging fellowships, second only to their perception that breast imaging is an “uninteresting field.”¹⁰ The same survey found that only 31% of residents polled would consider a fellowship in breast imaging if it was offered to them, and 29% would not want to spend more than 25% of their time interpreting mammograms.¹⁰ Many breast imaging fellowship programs throughout the nation are unable to attract candidates.¹⁰ Of the 6 breast imaging fellowship positions available in the state of Florida this year, only 1 is currently filled.

It has become more difficult to recruit dedicated or fellowship-trained breast imagers in Florida. Furthermore, candidates who specialize in other areas of radiology often decline a job offer when they are notified that mammography would be required as part of their practice mix. The problem is further exacerbated by growing numbers of radiologists who refuse to increase their mammography case load due to medicolegal concerns.

In recent years, most insurance companies that had previously offered professional liability policies for Florida radiologists have discontinued the coverage, liquidated, or left the state. In 1998, there were 40 insurance companies writing medical liability policies in Florida; in 2002 the number had dwindled to only 6. By 2002, the Florida medical insurance industry had reported paying out an average of $1.40 for every dollar collected.¹¹ According to the ACR, Florida has the highest median medical liability premium for radiologists in the United States.¹² The cost of medical liability insurance has become unaffordable for many radiologists. In parts of South Florida, it is not uncommon to pay >$80,000 for liability coverage. In fact, there are reports of premiums doubling or tripling for the 2004 renewal period. This precipitous rise in rates also affects radiologists who do not have any history of past claims. Furthermore, radiologists who read mammograms in Florida may be quoted higher premiums than those who do not practice breast imaging. The cost of “tail coverage” has also increased exorbitantly. One of the major insurers agrees to provide the tail without charge only if the radiologist agrees to retire permanently, which compounds the manpower shortage. Also, most Florida radiologists are dropping the higher limits of medial liability coverage for fear of becoming the “deep pocket” in a lawsuit.¹³ Another reason for purchasing the lower amounts of coverage is to avoid the excessive cost of the higher policy limits.

In a 2003 special session, the Florida legislature passed a cap of $500,000 on noneconomic damages (ie, pain and suffering) in medical liability awards. The cap is limited to $1 million, regardless of the number of defendants that are sued.¹⁴ To date, the legislation has not been effective in curbing the rise in liability premiums, since the caps are higher than the $250,000 initially sought by physicians and are pierceable for “catastrophic injury, permanent vegetative state, and death.”¹⁴ A previous Florida Medical Association (FMA) ballot initiative to place caps of $100,000 on noneconomic damages was defeated in 1988.

During the 2004 legislative session, the Florida Radiological Society (FRS) sought passage of a bill that would have provided sovereign immunity for radiologists who read mammograms except in cases of gross negligence. Since the bill was rigorously opposed by the Academy of Florida Trial Lawyers, the language was amended by the FRS to mandate the formation of a Workgroup on Mammography Accessibility. It also commissioned a study by the Department of Health (DOH) to focus on the issues of availability, quality, and cost of mammography.¹⁵ Findings and recommendations of the Workgroup and DOH study will be reported to Governor Jeb Bush and other state officials.

The Florida Medical Association filed a constitutional amendment in the November 2004 general election that was approved by the voters. This ballot initiative (Amendment 3) limits the contingency fees of plaintiff attorneys in medical liability awards to 30% for the first $250,000 and to 10% for the remainder of that judgment or settlement. Florida physicians hope that this will result in fewer filings of nonmeritorious liability suits and provide relief from the skyrocketing liability premiums. A constitutional approach was necessary, since Florida law does not allow the regulation of attorney fees by the legislature.

The Trial Bar filed two ballot initiatives in the 2004 general election that were also approved. One of these requires healthcare facilities to fully disclose all peer-review information, which allows patients, attorneys, and the media the right to review all records regarding adverse medical incidents. The other amendment revokes the Florida medical license for physicians who have had 3 court judgments against them in medical liability cases or 3 disciplinary actions rendered by the Florida Board of Medicine. Currently, both of these amendments are held up in the courts and will probably require legislative action prior to implementation.

In South Florida, many physicians in high-risk specialties (ie, neurosurgery and obstetrics) have opted to self-insure or to “go bare.” Florida law does not require a physician to purchase medical liability insurance in order to practice medicine, but does require proof of at least $250,000 in personal assets to cover a potential judgment. The physician who declines coverage can also post a $250,000 bond or obtain a letter of credit (LOC) to satisfy the state law. Some radiologists have recently made the decision to self-insure as an alternative to paying the costly liability premiums. Since hospitals typically require medical liability insurance as a requirement for staff privileges, most hospital-based radiologists do not have that option.

Although other factors, such as limited reimbursement and burdensome regulatory requirements, may also contribute to the mammography crisis,¹⁶ the fear of litigation and the spiraling cost of medical liability premiums are primarily responsible for the erosion of access to mammography services in Florida.