Series: Malpractice From A-Z
Four of a Series of Five
How to Pr
epar
e for the
Prepar
epare
Medical Malpractice TTrial
rial
by Gregory J. Minana, JD & Leslie P. Wallace, JD
As you work with your
attorney to pr
epar
e for
epare
prepar
a trial, you must
remember that the jury
is now your audience.
Greg Minana, JD, is a member, and
Leslie Wallace, JD, is an associate of
Husch & Eppenberger, LLC, in its St.
Louis office. Husch & Eppenberger,
LLC, acts as outside general counsel
to the MSMA.
Intr
oduction
Introduction
So, you’re going to trial. If you
have reached this stage of the litigation
proceedings, presumably efforts to
settle the case on negotiated terms
failed. It is possible that as you hear the
word “trial” scenes of Perry Mason, L.A.
Law or Boston Legal (depending on your
generation) are running through your
mind – perhaps a flurry of attorneys
uttering words you have never heard
before (better referred to as “legalese”)
in front of a judge and jury; an attorney
looming over the witness stand firing
questions at what appears to be a tireless
rate of speed; and the constant echoing
of the judge saying “objection,”
“sustained,” and instructing “the jury
will disregard that last statement.”
To calm you, there is good news
and there is bad news. The bad news is
that all of the above does actually happen
during a trial, but the good news is that
it does not all happen that fast and you
will be adequately prepared beforehand.
What you might see on television is
intentionally condensed to depict an
entire case in less than forty minutes,
and a trial in less than twenty minutes.
In the real world, your case will develop
over the span of 1-2 years, and the trial
will last 3 to 10 days. During the early
stages of the case your role was more
akin to a bystander because you were
476 Missouri Medicine Membership Directory September/October 2006 Vol. 103 No. 5
on the outside of the case - reading
medical records, depositions, and
reports from your attorney. However,
during the pre-trial and trial, your role
is that of an active participant, and you
should expect to work closely alongside
your attorney to prepare.
How Should I Pr
epar
e
Prepar
epare
for a TTrial?
rial?
Once your attorney informs you
that your case is going to trial, the
actual preparation may begin as early as
2-4 weeks prior to the trial date. By
this point you have already had your
deposition taken, and have spoken at
length with your attorney about the
strengths and weaknesses of the case.
Now, being weeks away from a trial,
you should expect that the frequency
of conversations and contact with your
attorney will increase, along with your
own participation.
Throughout this pre-trial period it
is reasonable to expect to talk with
your attorney almost daily. This is a
medical malpractice case and the law
requires that a medical expert establish
the standard of care. Therefore, as
your attorney shapes and finalizes the
defense of the case, he or she will seek
assistance from you to explain how to
best fit the medical analysis into the
legal framework. This involved period
requires patience on your part.
In preparation for this deposition,
you might have reviewed the patient’s
medical records, laboratory reports and
related studies on the particular care or
treatment at issue and explained to a
relatively medically sophisticated
audience (the attorneys) how and why
you provided the specific care and
treatment to the patient. Similarly in
preparing for trial, you will assist your
attorney in presenting diagrams and
literature that supports your position.
At this point, one to two years worth of
discovery (sharing of information
between the parties) has taken place,
and your attorney will depend on you
to assist her in assembling this
fragmented information into a
compelling story. You and your
attorney will work together to tell this
story. You will have to tell the story so
that it is medically accurate, and your
attorney will tell the same story so that
it is appealing and persuasive for the
jury.
However, as you work with your
attorney to prepare for a trial, you
must remember that the jury is now
your audience. Therefore, you should
know that while your medical expertise
is still a necessary component of the
case, it is how you explain this expertise
to the jury that is critical. Generally,
the jury is not medically sophisticated,
and therefore may not be persuaded by
“medicalese.” As you work with your
attorney, keep this in mind.
What Do I Wear?
Medical professionals do not often
think about their clothes or the details
of their appearance. Andre Aggasi once
said, “Image is everything.” He was
only partly wrong, because image is
something. Whether we like it or not,
our appearance says a lot about us and
is even more important when people
are asked to make judgments based
upon limited information. Generally,
it is appropriate to wear professional
attire when you appear before the court
in any capacity. In doing so, you should
wear a professional suit that you can sit
in comfortably for several hours at a
time. It is also preferred that your suit
be in a dark or neutral color that is not
a distraction to the court or jury. The
key is “distraction” – you do not want
anything about your clothes, jewelry,
hair or anything else to distract the
jury’s attention from the evidence at
trial.
Often the greatest statement you
can make in your case is when you are
not even speaking. Your demeanor,
what the jury observes throughout the
entire trial, is critically important to
the outcome of your case. The pointed
truth is that if the jury likes you, while
you are not guaranteed a win, it will be
much, much harder for them to assess
liability against you.
At all times you should appear
professional, confident (but not
arrogant) and relaxed. It is important
that you watch your facial expressions
because the jury will be observing to
see how you react to unfavorable
testimony regarding the case. If you
show signs of anger, irritation, or make
any emotional outburst, you may
permanently damage your credibility
with the jury. Unfortunately, these
cases are not always about what is right
or fair. While you may genuinely feel
that you did everything correctly, there
are people on the other side of the case
who contend that you did something
wrong. The jury has to make a decision
between two opposing positions, and
they are going to look for any and
everything to assist them in that
decision. You do not want to appear
angry or defensive at being “dragged
into court.” Rather, you want the jury
to see you as someone eager to appear
in court and have the opportunity to
defend yourself and “clear your name.”
Finally, if a spouse, family member
or significant other would like to offer
their support to you, they are welcome
to attend any portion of the trial. (In
fact, the trial is open to the public and
anyone can attend.) However, the
same rules of attire, conduct and
demeanor that apply to you, apply to
them. There are both pros and cons to
having your spouse or significant other,
attend the trial. On one hand, having
them at the trial displays a visible
support system for the jury to see, and
this can make it harder for the jury to
find against you. On the other hand, it
is not helpful if you are unable to
maintain your focus, unable to speak
candidly, or if your family member(s)
will be a distraction for the judge or
jury. Often it is advised that a family
member only attend the voir dire,
opening statement, and closing
argument, but this is a decision that
you can discuss in detail with your
attorney.
What W
ill The Evidence
Will
Be at TTrial?
rial?
Depending upon the venue (the
physical location where the case is
tried), you will learn the actual trial
date several months to several weeks in
advance. Regardless of when the actual
date is set, the Court will require the
parties to have a “pre-trial conference.”
Only the attorneys attend this
conference. As its name dictates, this
conference takes place prior to the trial
(usually the morning of the trial, or as
early as two weeks prior to the trial)
and is an informal meeting at which the
opposing attorneys meet with the judge
to discuss matters of evidence and
narrow the issues that will be tried.
One of the primary goals of the pretrial conference is to educate the judge.
Even though the judge may be somewhat
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478 Missouri Medicine Membership Directory September/October 2006 Vol. 103 No. 5
familiar with the case and the parties,
and may have already made decisions
with respect to different issues
throughout the duration of the case,
the judge is also giving the same
attention to hundreds of other cases.
You may recall that in your
deposition you were asked numerous
questions by the opposing counsel
inquiring into various facets of your life
– these questions may have included
your family history, education,
licensure, work history, other litigation
and ultimately your expert medical
opinions. It is possible that you
questioned the relevance of this
information. However, you should keep
in mind that the information discovered
in your deposition may have been
discoverable - properly discussed in a
deposition, but it may not be admissible
at trial.
By this point in the litigation, the
parties have shared a great deal of
information, including your deposition
testimony. This information was
generally, with some exceptions,
discoverable, which is defined as
“reasonably calculated to lead to
admissible evidence.” Admissible
evidence is that which is relevant to
the issues being tried and not overly
prejudicial; and relevant information
then is that which tends to prove or
disprove a necessary element of the
case. The overall goal is to ensure that
the jury only hears relevant
information that will allow them to
fairly assess your case.
Determining what evidence the
jury should hear is one of the primary
functions of the pre-trial conference.
It is likely that your attorney will file
one or more motions in limine. This is a
formal request that your attorney will
make to the judge in order to prevent
the plaintiff’s attorney from introducing
certain information at the trial. This
type of motion ultimately protects you,
by preventing the jury from hearing
irrelevant information, and it protects
the integrity of the trial, by ensuring
that the proper issues are being tried.
For example, if it is elicited during
your deposition that you were sued in
a prior malpractice suit on an issue
unrelated to the present suit, then it
would be improper for the plaintiff’s
attorney to mention the prior
malpractice suit to the jury. Simply
stated, the jury might be unable to
distinguish a prior malpractice suit from
the current lawsuit, and this
information would only serve to
prejudice the jury against you, and
further impair your right to a fair trial.
Hand in hand with what evidence should
be heard, the motions in limine effectively
narrow the issues that will be argued at
trial. Your attorney will place before
the judge the specific questions which
are at issue and thereafter contend that
only the evidence that is relevant to
those issues should be admitted
In addition, the pre-trial
conference is also the time in which
your attorney will advise the judge of
the witnesses you expect to call, and
any other unique evidentiary issues that
will be applicable in your case.
Who W
ill Hear My Case?
Will
The first aspect of trial is the
selection of the jury. A jury pool is
comprised of local citizens who have
responded to a jury summons and have
gathered at the court to serve as a juror
in a criminal or civil case. Each pool
consists of approximately 40
prospective jurors who are thereafter
questioned by the judge and/or the
attorneys to determine whether they
are suitable and/or competent to hear
your case. This process is formally
known as “voir dire”, a French term
which literally means to “to speak the
truth.” The Constitution states that
every defendant shall have their case
heard by a jury of their peers. In your
case, however, this does not mean that
the jury will be made up of 12
physicians, but rather it will be
comprised of 12 ordinary citizens so
you will need to educate them on the
medical issues.
During voir dire, both attorneys
may have the opportunity to ask each
member of the jury pool (or panel)
various questions that will assist both
you and your attorney in determining
whether this person can be fair and
impartial in listening to your case. For
example, your attorney may ask the
following: “Has anyone present ever
sued a doctor?” If a person answers
“yes,” then depending on the discussion
thereafter, this response may be a reason
to challenge whether that potential juror
is be unable to be impartial towards
you based upon their prior experience.
There are two types of challenges or
strikes that an attorney may make
against any person in the jury pool: the
first is a “for cause” strike, where a
person is removed from the jury pool
based on an expressed bias; and the
second is a “peremptory” or
discretionary strike, for which no reason
is needed at all, so long as there is no
manifestation of discrimination. In
Missouri a civil jury consists of 12
jurors and one or two alternates.
Your participation and role during
voir dire is very important. This is one
of the few times that you will have an
opportunity to directly influence the
jury. Your attorney will look to you for
assistance in observing the jury’s
demeanor to determine if you have any
initial feelings about a particular
prospective juror. You may observe a
person smiling and nodding at you,
which may indicate sympathy and a
person that you may want on your jury.
On the other hand, you may observe
someone glaring at you, which may
indicate a strong bias against you. This
September/October 2006 Vol. 103 No. 5 Missouri Medicine Membership Directory 479
might be someone that you would
suggest be removed them from the jury
panel.
Pr
elude to the TTrial:
rial:
Prelude
The Opening Statement
After the jury is selected, each
attorney will make an “opening
statement” to the jury. The plaintiff’s
attorney will go first, followed by your
attorney. These statements are usually
a short summary that serves as an outline
of what the attorney expects the
evidence in the trial to show. This is
often referred to as the “big picture.”
Generally these statements should not
be argumentative, as the jury has not
been presented with any evidence to
consider. However, do not be surprised
if your attorney makes an objection
(request to the court to prohibit a
certain statement) during the opening
statement of the plaintiff’s attorney
and vice versa, if the attorney feels that
the statement is bordering on argument.
It is common for attorneys to push the
line between argument and statement.
Round 1:
Plaintiff’s Case-inChief
Case-in-Chief
After your attorney gives the
opening statement to the jury, the
plaintiff’s attorney will present his/her
case or “case-in-chief” to the judge
and jury.
A. Presenting the Evidence
The presentation of the plaintiff’s
case may be a highly anticipated aspect
of the medical malpractice trial for the
defendant simply because of the
unknown. While Missouri’s civil
practice rules require that the parties
continually engage in the sharing of
information throughout the discovery
and pre-trial process, there is no duty
placed on either side to discuss exactly
how they will choose to present their
respective case to the jury at trial. In
fact, this is information that is privileged
and protected. Nonetheless, your
attorney is experienced in litigating
medical cases, and based upon this
experience will be skillful in anticipating
the theories and arguments of the
plaintiff’s attorney and preparing you
for many of the “what ifs” that may
occur during a trial.
One important consideration and
strategic advantage that the plaintiff’s
attorney has is the order in which he or
she will call their witnesses. At a
minimum, the attorney will usually
present the plaintiff to testify about
their treatment and injuries; plaintiff’s
expert(s) to testify about the standard
of care; and perhaps family members
and friends to testify about the extent
of damages the plaintiff has suffered.
Additional witnesses may include the
treating doctor(s) who could testify
that some portion of the treatment
was below the standard of care, and
finally, you.
As a defendant in the case you
should understand that you are probably
the most important witness and the
plaintiff’s attorney will almost certainly
ask you questions at the trial, whether
during his or her case or your attorney’s
case-in-chief. The content of this oral
exchange with plaintiff’s attorney would
be very similar to your deposition, with
the exception that he or she would not
be able to discuss those subjects that
were properly excluded during the pretrial conference. However, your
attorney may counsel you on a different
approach or demeanor for these
questions.
More often than not, the first time
you will take the witness stand is during
your case (the defendant’s case-inchief), and the plaintiff’s attorney would
thereafter question you. However, the
plaintiff’s attorney may call you as a
witness during his or her case in order
to surprise you and perhaps catch you
480 Missouri Medicine Membership Directory September/October 2006 Vol. 103 No. 5
off guard. If you are called, it is
important that you remain professional
and courteous and be prepared. You
should not make any facial expressions
indicating surprise or shock, nor should
you be argumentative. Above all,
remember who your audience is – the
jury. You are now an active participant
and should focus on educating the jury.
It is permissible, and even advisable, to
answer every question (unless your
attorney makes an objection) while
facing the jury and making eye contact
with them. The jury will make the
ultimate decision about your liability,
so regardless of when you tell your
story you should make them understand
why you did what you did for the
patient, and how the patient’s injury or
damages are unrelated to your care and
treatment.
B. Preparing Yourself Emotionally
A medical malpractice trial can
take an emotional toll on you, and it is
therefore advisable that you prepare
yourself emotionally for many factors.
The trial itself may be very long,
lasting several days to several weeks
depending upon the number of medical
issues being tried as well as the number
of defendants. Your attorney will not
be able to present your case until the
plaintiff’s attorney is finished; however
you are expected to be at the court for
the duration of the trial. Even though
you must remain attentive while the
jury is present, your attorney may
encourage you to bring reading material
or other work to do while the jury is not
present. (The judge is presiding over
many cases at the same time and may
be required to take frequent breaks
from your case to handle issues that
may arise in another case.)
Potentially the most emotional
factor is preparing yourself to hear
days, and even weeks, of sympathetic
testimony from the plaintiff’s witnesses
which may evoke empathy from the
jury and perhaps lead you to feel nervous
or anxious about your own testimony.
In truth, medical malpractice cases are
hard on everyone involved. You may feel
angry or frustrated that your medical
decisions are being questioned or
attacked, but do not want to react visibly
to what you hear, as your reactions may
be misinterpreted. Moreover, the jurors
may become angry if they believe you are
trying to unduly influence them through
your reactions. However, remember that
you will have your turn to tell your story.
Round 2:
Defendant’s Case-inChief
Case-in-Chief
After the plaintiff has rested
(completed his case), it is your attorney’s
turn to tell your side of the story to the
jury. Remember that yours will be the
last evidence that the jury will hear.
A. Presenting the Evidence
Similar to the plaintiff’s attorney,
your attorney will present your case-inchief to the jury through witnesses. At
this point the jury has heard several days
of testimony intended to make the plaintiff
appear very sympathetic, and you appear
less than competent. The plaintiff’s
attorney had the strategic benefit in
selecting its order of witnesses. However,
having heard the testimony of the
plaintiff’s witnesses your attorney is able
to use your witnesses to persuasively tell
your story while rebutting any allegations
previously made in the plaintiff’s case-inchief. You have the strategic advantage of
having the jury deliberate with your
evidence as the most recent in their mind
If you have not already been called as
a witness in the plaintiff’s case, then you
will be called as a witness in your case to
testify on your own behalf. This will be
your “direct examination.” Direct
examination is where the attorney who
called that witness to the stand asks the
witness questions. The scope of your
examination will generally focus on several
things, including care and treatment you
gave to the plaintiff, and why the plaintiff
was not damaged by the treatment you
administered, or, in the alternative, that
the injury suffered by the patient was
inevitable due to pre-existing conditions.
Your attorney will discuss any additional
information that may be important to
your testimony in great detail so that you
are well prepared.
After you have finished your direct
examination, the plaintiff’s attorney will
“cross-examine” you (take his turn to ask
you questions). During your cross
examination you may hear your attorney
object to a question posed by the plaintiff’s
attorney. It is in the judge’s discretion
whether to overrule the objection
(requiring the question to be answered),
or sustain the objection (ruling that the
question should not be answered).
After your cross examination, your
attorney may conduct a “re-direct
examination” where he or she asks
additional questions to you. If your
attorney chooses to re-direct, you should
not feel that you made a mistake during
your cross examination. Re-direct may
happen for several reasons, including,
that you made a statement during your
cross examination that your attorney feels
needs to be further explained or clarified
to avoid confusing or misleading the jury,
or your attorney may want to reiterate a
strong and positive aspect of your case so
that it is the last thing the jury hears.
Along with your testimony, your
attorney will call an expert(s) to testify in
your case as to the appropriate standard
of care, which in a medical malpractice
case means the degree of skill and learning
ordinarily used under the same or similar
circumstances by members of the
defendant’s profession.2 Your attorney’s
question to the expert will focus on several
things, including whether he or she is
qualified to testify as an expert. With
this, your attorney will question the expert
about his or her specific knowledge
concerning the medical issues in the case,
how long he or she has specialized or
received training regarding the medical
issues in the case, and the process method
by which he or she developed his or her
medical opinion.
Finally, your attorney may have other
independent witnesses, along with any
other treating doctors. The treating
doctors are sometimes the most
important because they are often regarded
by the jury as independent and unbiased.
B. Focus on Educating the Jury
It cannot be emphasized enough that
when giving your testimony your audience
is the jury. Your focus should be to
educate them concerning why you took
the particular actions you did in regard to
the care and treatment of the plaintiff;
why you believed these actions were
medically necessary; and how the patient’s
injuries were indirectly related to your
treatment, or would have inevitably
occurred given the patient’s prior medical
history. While the stated theme
throughout has been to remain
professional and courteous, it is a good
idea to also be energetic when you speak
to the jury. Remember that the jury
represents the average lay person who is
probably unsophisticated in the area of
medicine.
In order to assist you in preparing
for your direct and cross examinations,
your attorney may suggest that you
practice your examination before the
trial starts. Often, this practice is
videotaped to assist you in seeing
yourself as the jury sees you and allowing
your defense team to critique your
presentation.
W ill the Jury Be Guided in
Deciding My Case?
In Missouri the judge reads
instructions to the jury after the close
of the evidence (your case-in-chief)
and prior to the closing arguments.
Jury instructions are essentially a narrow
and specific explanation of the law.
September/October 2006 Vol. 103 No. 5 Missouri Medicine Membership Directory 481
These instructions are intended to
provide a detailed guideline that
identifies the relevant law to your specific
case, and directs the jury how to decide
the case based upon the evidence they
have heard. This is also known as
charging the jury. The inclusion,
omission, or modification of any
instruction is argued by the attorneys
and ultimately decided by the judge.
The number of final instructions
will vary based upon the number of
claims or theories that were alleged in
the case, as well as the number of
defendants. Generally these final
instructions charge the jury not to
assume facts not in evidence, specify
the number of jurors that must agree in
order to return any verdict (for or
against you), detail the requisite burden
of proof (the obligation of plaintiff to
prove his allegations), define any
necessary terms used in the instructions
(one such term is “negligence” in a
medical malpractice case), ask the jury
to assess percentages of fault if there
are multiple defendants, and indicate
the amount of damages, if any, to be
awarded to the plaintiff.
The Final R
ound:
Round:
Closing Ar
guments
Arguments
After the final jury instructions are
read, each attorney will present his or
her closing argument to the jury. The
closing argument is just that, an
argument, whereby the attorneys argue
the facts and draw upon inferences
from those facts to persuade the jury to
make a certain decision. Put simply,
the attorney argues what conclusion,
or verdict, should be drawn from the
facts, or evidence, introduced into the
trial.
Similar to the opening statements,
the plaintiff’s attorney will go first,
followed by your attorney. Unlike the
opening statement, however, where
your attorney could only say what he or
she expected the evidence to show, in his
or her closing argument he or she is
now able to state, “based upon the
facts presented, the evidence did show
x, y and z and therefore your verdict
should be in favor of the defendant.”
The closing argument is generally longer
and walks the jury in greater detail
through the evidence that was presented
during the trial. Lastly, plaintiff’s
attorney is allowed to save some time
from his or her closing argument to
make a final rebuttal argument.
but most defendants want to be present
for the verdict.
At the end of their deliberation,
the jury will complete the verdict form.
The form requires the jury to write in
the name of the party in whose favor
the jury is deciding. If the verdict is for
the plaintiff, then the jury will also fill
in a dollar figure for the total amount
of damages they believe will compensate
the plaintiff for the injuries alleged.
This dollar amount may be $0.
How LLong
ong W
ill It TTake
ake
Will
for the Jury to Make a
Decision?
After the jury has heard the closing
argument, the judge will provide them
with the instructions and a verdict form
which contains instructive language on
how to make their decision in
accordance with the evidence presented
and the law. The judge will thereafter
dismiss them to “deliberate” (decide)
the case. The jurors will leave the
courtroom and assemble into a nearby
room where they will discuss the
plaintiff and defendant’s case among
themselves until they reach a decision.
No party or witness is allowed to speak
to the jury during this time.
This process of deliberation is the
point in which the duties of the judge
and the jury essentially come together.
The judge is instructed to hear and
decide the law and the jury is instructed
to decide the facts. In deliberating, the
jury is deciding the outcome based
upon the facts they heard at trial, and in
conjunction with the judge’s continuing
interpretation of the law, both before
and during the trial. The instructions
are then fundamentally the judge’s final
way to ensure that the jury tailors the
evidence within the scope of the
appropriate law.
A jury may deliberate for less than
an hour or for several days. You may be
excused while the jury is deliberating,
How Do I Know
if I’m Liable?
When the jury has finished
deliberating and reached a verdict, they
will notify the bailiff or appropriate
court personnel and be led back to the
courtroom. The verdict form is
returned to the judge, and the judge
will read the verdict out loud.
In order for you to be held liable in
Missouri, at least 9 of the 12 jurors
must agree that the plaintiff’s attorney
presented enough evidence to show
that by a “preponderance of the
evidence” you were liable for the injury
or damage to the patient. This
particular burden of proof requires a
finding that you were more likely than not
to have been medically negligent. There
is no mathematical inquiry involved in
this finding. If the jury finds you liable,
then judgment is awarded against you
in favor of the plaintiff. But, with all
hope, the verdict is returned in your
favor.
482 Missouri Medicine Membership Directory September/October 2006 Vol. 103 No. 5
Refer
ences
eferences
This article is written by Gregory J. Minana and
Leslie P. Wallace. Greg Minana is a member and
Leslie Wallace is an associate of Husch &
Eppenberger, LLC, in its St. Louis office. The
information contained in this article should not
be construed as legal advice or legal opinion on
any specific facts or circumstances. The
contents are intended for general information
purposes only, and readers are urged to consult
their own attorney concerning their own
situation and any specific legal questions.
MM
2. MAI 11.06 [1990 Revision]
As I See It
Kansas City Blues:
Fighting the Insurance Cabal in Court
by William D. Soper, MD
Ar
ea physicians came to
Area
believe that the system of
pr
oviding medical car
e had
providing
care
been dramatically and
harmfully alter
ed and
altered
influenced in every way
imaginable by outside thir
d
third
parties – the insurance
companies. It was in this
climate that physicians
determined they must work
together and take action.
Intr
oduction
Introduction
Kansas City area physicians filed four
class action lawsuits against health insurers
last year. Two were filed in Jackson
County, Missouri, and two in Wyandotte
County, Kansas. The physicians allege the
defendant insurance companies have
engaged in unfair payment practices with
regard to physician billing, and anticompetitive conduct that has wrongfully
depressed physician payments in the
Kansas City area.
William Soper, MD, MPA,
is President of Mid-America
Medical Affiliates. He practices
Family Medicine in Kansas City, MO.
Difficult Times to Practice in
Kansas City Ar
ea
Area
The Kansas City medical community
has long found it difficult to recruit
physicians to join area practices. Although
other causes may play a role, poor
reimbursement for services is the most
commonly cited factor when physicians
choose to locate elsewhere. It is well
known that groups in competing
midwestern communities typically offer
significantly higher salaries, often half again
as much as market rates in Kansas City.
For example, Topeka cardiologists
recently offered recruits a salary $80,000
higher than heart doctors in Kansas City;
and a Springfield surgical group outbid an
area surgical group by $40,000 for a
graduating general surgeon. Given this, it
was apparent that physician peers
elsewhere are financially healthier than
their colleagues in Kansas City.
Several months before the lawsuits
were filed, the Mid-America Medical
Affiliates commissioned a professional
survey to formally compare physician
reimbursement in several midwestern
communities. The results were
astounding. It found that Kansas City
doctors were being paid less – much less
– than their counterparts in St. Louis,
Des Moines, Topeka, Wichita, and
Springfield. Physicians in St. Louis were
paid 7% more than their peers in Kansas
City; in Des Moines they were paid 29%
more, and in Springfield some 33.5%
more for identical E&M and CPT codes.
These inequities are even greater when
one considers that overhead costs in these
comparison cities are equal to or less than
those in Kansas City. This means that
Springfield physicians are taking home
up to twice the income of Kansas City
doctors for the same services.
The survey also investigated whether
Kansas City patients and employers
benefited from these lower physician
payments. Surprisingly, it found that
health insurance premiums are not lower
in Kansas City than in comparison cities.
In most cases they were somewhat higher.
So, it seems, local physicians are being
paid less not for the good of patients or
the benefit of employers, but for the
profits of the insurance companies.
It seems as though insurance industry
profits set new record highs with every
reporting. According to its proxy
statement released earlier this year,
United Healthcare posted $1.6 billion in
gains (and paid its CEO $8 million a year
September/October 2006 Vol. 103 No. 5 Missouri Medicine Membership Directory 483