What America's Opinion Pages Are Saying About Medical Malpractice

March 7, 2003

"Is it any coincidence that the states least likely to discipline doctors are among those with insurance crises?...The problem is not the compensation paid to injured patients, but an epidemic of medical errors."

--New York Times Guest Editorial, Sidney M. Wolf, Director, Public Citizen Health Research Group, 3/4/03

"But clear away the dubious studies, the exaggerated line charts, the hysterical press releases, and look at the numbers, and the statistical case for caps is flimsy."

--BusinessWeek, Lorraine Woellert, Legal Affairs, Commentary, 3/3/03

"...what the current advocates desire is not real tort reform but to immunize powerful interests from the consequences of irresponsible civil behavior … But George Bush and his allies propose ill-advised tort reforms that would hurt innocent victims and are outrageously hypocritical."

--Wall Street Journal, Al Hunt's Column, 3/6/03

"Medical malpractice reform is bad medicine...Yet despite this epidemic of [medical] errors, fewer than 2% of the victims of medical malpractice ever sue their doctors...verdicts of $1 million occur in only 4% of medical malpractice cases, and they are usually reduced to a median of $235,000 upon final judgment."

--BusinessInsurance.com, Joanne Wojcik, Senior Editor, Commentary, 2/24/03

"...beware of solutions that are worse than the problem...federal caps on the amounts juries can award would do a needless injustice."

--Raleigh News & Observer Editorial, 1/20/03

"...cap[ping] pain-and-suffering awards...is the wrong prescription. Missouri already caps pain-and-suffering awards, yet malpractice insurance rates here continue to rise sharply."

--St. Louis Post-Dispatch Editorial, 1/19/03

"The demonstrating doctors have been playing a catchy but monotonous and thoroughly misleading tune about malpractice. For all the screaming about runaway juries and big malpractice awards, the evidence is not there."

--Newark Star Ledger Editorial, 2/18/03

"The lesson for West Virginia should be clear: insurance reform not tort reform is the real answer."

--Charleston (WV) Gazette Editorial, 1/17/03

"Jury award caps are easy to sell, but are no medical malpractice solution."

--Allentown Morning Call Editorial, 1/19/03

“In fact, nothing about California’s experience suggests that limiting jury awards will reduce malpractice premiums, or even slow their rate of increase.”

--Palm Beach Post Editorial, Dan Moffett,  2/2/03

“BAD MEDICINE: Doctors’ malpractice lies at heart of insurance crisis”

--Houston Chronicle Editorial, 1/12/03

“Bush’s damage caps do almost nothing to address the issue of frivolous cases … the caps will penalize the most severely injured patients with the strongest claims.”

--Chicago Tribune Guest Editorial, Steven Lubet, Northwestern University School of Law, 1/22/03

“Among other things, ‘tort reform’ would allow insurers to make up for lost investment income by cheating plaintiffs who were harmed by medical errors.”

--Atlanta Journal Constitution Editorial, 3/2/03

“It doesn't make sense to further harm people who have already been hurt in an effort to restrict the earnings of trial lawyers.”

--Oakland Tribune Editorial, 2/10/03

“Consumer advocates have long known that the only way to stop periodic insurance crises … involves stricter rate regulation, public oversight and repeal of the industry's extraordinary exemption from antitrust laws.”

--USA Today Guest Editorial, Joanne Doroshow, Exec. Director, Center for Justice & Democracy, 1/20/03

“Medical Mistakes, Not Lawsuits, Are The Problem”

--Hartford Courant Guest Editorial, Tom Baker, University of Connecticut School of Law Director, Insurance Law Center, 1/26/03

“Value of Human Lives Shouldn’t Be Capped”

--Newsday, Marie Cocco’s Column, 2/25/03

“Crack down on the few lousy doctors, and this crisis might be cured”

--Newark Star Ledger,  John McLaughlin’s Column, 2/9/03

“According to The Wall Street Journal, the insurance industry folks are jacking up prices not just because their investments in the stock market have fallen dramatically, but also because they fouled up their pricing practices in the early '90s.”

--Dallas Ft. Worth Star-Telegram, Molly Ivins’s Column, 1/23/03

“Want to slow medical malpractice complaints? Crack down on bad doctors.”

--Dallas Morning News Editorial, 2/15/03

  “Quack Remedy to Cap Malpractice Awards”

--St. Petersburg Times, Martin Dyckman’s Column, 1/19/03

“[State insurance commissioners] might prod insurers to … impose higher rates on doctors guilty of malpractice, so that a small number of careless doctors don’t drive up the rates for their colleagues.”

--New York Times Editorial, 1/17/03

http://www.nytimes.com/2003/03/04/opinion/04WOLF.html

A Free Ride for Bad Doctors

By SIDNEY M. WOLFE

The death of Jésica Santillán, the 17-year-old given a heart and lung transplant last month from an incompatible donor, has become the latest argument in Congress against President Bush's plan to limit malpractice damage awards. With doctors in several states staging work stoppages to protest the soaring costs of premiums, the plan to put caps on pain-and-suffering payouts had been picking up steam.

Yet in all the discussion of tragic cases and dollar amounts, a major cause of the malpractice problem is ignored: the failure of state medical boards to discipline doctors.

The fact is, only a small percentage of doctors account for most of the money paid out in malpractice cases. From 1990 to 2002, just 5 percent of doctors were involved in 54 percent of the payouts — including jury awards and out-of-court settlements — according to the National Practitioner Data Bank of the Department of Health and Human Services. (The data bank allows hospitals and medical boards to see the records of individual doctors but, thanks to pressure from the American Medical Association, Congress forbids it to release information to doctors or the public.)

Of the 35,000 doctors with two or more payouts during that period, only 8 percent were disciplined by state medical boards. Among the 2,774 doctors who had made payments in five or more cases, only 463 — one out of six — had been disciplined.

Is it any coincidence that the states least likely to discipline doctors are among those with insurance crises? Pennsylvania — where the governor had to intervene to keep doctors from going out on strike over malpractice insurance costs — has disciplined only 5 percent of the 512 doctors who had made payments in malpractice suits five or more times, the lowest percentage of any state. (Arizona, for example, has disciplined nearly half of the doctors in this category.)

And while Pennsylvania has 5.3 percent of the doctors in the United States, they make up 18.5 percent of American doctors with five or more malpractice payments. One doctor there paid 24 claims between 1993 and 2001 totaling more than $8 million (one was for operating on the wrong part of the body; another was for leaving a "foreign body" in the patient) yet was never disciplined by Pennsylvania authorities.

The state with the next highest overrepresentation of doctors with five or more payouts is West Virginia, where doctors went on strike last month. It has 0.57 percent of the country's physicians, but they make up 1.69 percent of American doctors who have had made malpractice payments five or more times. Only one-quarter of the state's doctors with five or more payouts has been disciplined by the medical board.

Blame lenient state boards for insurance rates.

In New York, another state with a pending malpractice crisis, the number of doctors who have had five or more malpractice payments is two and one-half times higher than would be expected from the number of doctors licensed. Yet only 15 percent of these 698 doctors have been disciplined by the state board.

Amid the uproar about malpractice premium increases, there is a deadly silence from physicians' groups on the crisis of inadequate doctor discipline. The problem is not the compensation paid to injured patients, but an epidemic of medical errors. If medical boards, which are state agencies, are unwilling to seriously discipline doctors who repeatedly pay for malpractice — including revoking medical licenses from the worst offenders — then legislatures must step in and change the way the boards operate.

Congress should also rethink the secrecy surrounding the practitioner data bank. While a few states release some data to the public, most Americans have no way of finding out their doctors' backgrounds. What patient would not like to discover the malpractice history of a potential doctor, especially if he is among the 2,774 in the United States who have had five or more payouts?

Sidney M. Wolfe, a physician, is director of the Public Citizen Health Research Group.

LEGAL AFFAIRS

By Lorraine Woellert

Commentary: A Second Opinion on the Malpractice Plague 

Way back in 1975, doctors marched on California's statehouse and staged a sit-in over soaring malpractice-insurance premiums. Politicians responded with a landmark law that capped pain-and-suffering payouts to victims at $250,000--a measure that was copied in more than 20 states.

Now, premiums are spiking again, doctors across the country are walking off the job, and President George W. Bush is calling for legislation that would impose a California-like cap on malpractice awards nationwide. With Congress in Republican hands, the proposal is getting serious consideration.

But do caps on awards really keep doctors' insurance premiums down? Both sides in the debate--doctors and insurers fighting for caps, and trial lawyers and patients fighting against them--are waging a war-by-anecdote. But clear away the dubious studies, the exaggerated line charts, the hysterical press releases, and look at the numbers, and the statistical case for caps is flimsy. Here's what we found:

MYTH 1: Premiums have risen more slowly in states with caps on pain-and-suffering awards.

The White House, pro-tort-reform business groups, and insurance companies all note that states with caps on awards had average premium hikes of just 12% last year, while states without caps averaged a 44% premium jump. That puts a crimp on doctors, who have watched premiums compound for many years even as their incomes are squeezed by managed care. But the Administration's analysis is incomplete, omitting data from nearly a dozen states without caps, such as Vermont and Arizona, where premiums have stayed low. If those states had been included, the gap would have narrowed. Taken as a whole, capped states raised premiums an average of 12.7% last year; states without them saw premiums rise 20.4%, according to data provided by Chicago newsletter Medical Liability Monitor.

And if you go back a few years, the difference between states with caps and those without narrows more. In 2001, premiums went up 5.8% in the cap states, compared with 9.6% in jurisdictions without them. The year before, premiums actually rose more in states with caps (3.2%) than in states without them (2.7%)--a pattern that also held true in 1999 (2.12% vs. 0.54%). The bottom line: Caps might moderate premium hikes, but not to the extent that tort reformers claim.

MYTH 2: Runaway jury awards are forcing insurers to raise rates.

The size of damage claims paid out by physician insurers has been more or less steady since 1991, according to the National Practitioner Data Bank, a government service that tracks doctor errors and malpractice claims. The mean payout was $135,941 in 2001, up 8.7% from $125,000 a year earlier. Over 10 years, malpractice payouts have grown an average of 6.2% a year.

Guess what? That's almost exactly the rate of medical inflation: an average of 6.7% between 1990 and 2001, according to the Journal of Health Affairs. It's also worth noting that, nationwide, malpractice payouts by physicians and their insurers were a mere $4.5 billion in 2001--less than 1% of the country's overall health-care costs of $1.4 trillion. They have risen slowly, if steadily, since 1996, when the total was $3.5 billion.

MYTH 3: The number of mega-awards is growing.

It's the jaw-dropping award that spooks insurers. They claim malpractice payouts of $1 million and higher are becoming all too frequent, up by 7.9% last year. But the number of mega-claims remains small. Only 895 out of 16,676 payouts, or about 5%, in 2001 topped $1 million, up from 506 in 1996, according to government data.

Meanwhile, some states are finding that a small percentage of physicians accounts for the majority of big malpractice verdicts--which would indicate that the problem is a few bad doctors, not greedy tort lawyers. Officials in Nevada, which adopted a $350,000 cap last year, discovered that only two doctors were to blame for $14 million of the $22 million in claims awarded in one recent year. Both are still practicing.

MYTH 4: Courts are clogged with an exploding number of claims.

Claims against the industry as a whole have actually been flat since 1996 (chart). In Florida, a state insurers say is in crisis, medical malpractice claims rose just 3.7% from 1997 to 2000, according to the National Center for State Courts, a Williamsburg (Va.) research group. A broader as yet unreleased study of 17 states will show that filings remain stable, with an increase of about 5% from 1997 to 2001.

No doubt there are frivolous lawsuits out there. But there are also plenty of medical mistakes. A 1999 study by the federally funded Institute of Medicine found that 44,000 people die from hospital errors each year. And doctors, many of whom are covered by physician-owned mutual insurers, traditionally have been loath to sanction colleagues by denying them insurance. "We're getting more aggressive" at weeding out bad doctors, says Dr. Richard E. Anderson, chairman of Doctors Co., a Napa (Calif.) insurer that covers 28,000 physicians in all 50 states. But Anderson and other insurers refuse to document that claim by releasing their nonrenewal rates.

That makes it hard to tell if the profession is changing its culture. On this and many other key points, proponents of caps simply aren't coming up with the facts to make their case. Instead, they're relying on scare stories--always a bad starting point for making serious policy decisions.

Woellert reports on legal affairs from Washington.

Thursday, March 6, 2003

The Bogus Tort-Reform Case

By Albert R. Hunt

It's easy to see why Karl Rove is eager to keep war and terrorism front and center. The economy remains sluggish, the Bush plan to cut taxes while waging war is embarrassing even some Republicans, and the case on another domestic priority, tort reform, is faltering.

The president scores political points when he rails against trial lawyers and the litigation explosion, especially medical malpractice; it's the particulars that create trouble. The latest illustration is the tragic story of the 17- year-old Mexican girl who died last month after being given a heart and lung transplant from a donor with an incompatible blood type.

Mr. Bush and congressional Republican leaders want to cap malpractice awards for pain and suffering, the chief damages this family could receive. Would they really limit this impoverished family to $250,000? GOP lawmakers like Sen. Orrin Hatch, already are backtracking, suggesting perhaps there could be some elusive exception.

Then there's Democratic presidential aspirant -- and former trial lawyer -- Sen. John Edwards, who Republican operatives envisioned as a pin-up poster for greedy trial lawyers. The president trekked to North Carolina last year to assail what he calls a legal lottery that pads the pockets of the plaintiffs bar.

The backdrop was his Health and Human Services Agency report that specifically targeted a case for which Mr. Edwards was the lawyer. Bailey Griffin was born severely brain-damaged as result of a negligent obstetrician; she was confined to a wheelchair, had no bowel control and had to be fed through a tube. She died at age six. A multimillion dollar jury verdict was labeled excessive, the sort that contributed to rising health-care costs.

Did the Griffins hit the jackpot? The little girl's father had an answer for the president: "Every time I go to my daughter's grave, it's hard to feel that way."

The tort reformers of course have their old standbys, none more popular than the McDonald's case in which a woman won a verdict because she spilled hot coffee on herself. What they neglect to say is the woman suffered third degree burns so severe that 16% of her body was permanently scarred; the company had ignored 700 burn complaints and warnings that its coffee was served at 50 degrees higher than desirable.

There are, of course, abuses in the legal system, and yes, some changes are needed. But the White House egregiously distorts the case. An impressive six- week study by USA Today, published this week, found that while some doctors have been hit hard by rising malpractice premiums, most "are minimally affected." Premiums aren't rising any more rapidly than other health-care costs and, on average, physicians spend more on rent than malpractice insurance.

In the big class-action suits, especially as pertains to future claims, some federal action is essential. But on product liability and medical malpractice, what the current advocates desire is not real tort reform but to immunize powerful interests from the consequences of irresponsible civil behavior. They would create a caste system for litigation: Those with resources would have easy access, those without would not.

There are sleazy, greedy trial lawyers, just as there are sleazy, greedy corporate CEOs; in both cases, they are in a minority. Trial lawyers' political donations unduly influence too many Democrats, just as insurance and tobacco money unduly influences too many Republicans.

If you want to understand the president's underlying motives, read the new book on his guru, Karl Rove, "Bush's Brain." Penned by two crack Texas reporters, it discloses that in 1994 Mr. Rove, a hired gun for Philip Morris, persuaded the gubernatorial candidate George W. Bush to make tort reform a priority. The tobacco lobby, seeking immunity from its killing fields, was delighted. (Mr. Rove, according to the book, later dissembled, under oath, on his role here.)

Malpractice litigation is only part of the cause of the huge increase in insurance premiums. The insurance industry's pricing and accounting practices, as this newspaper painstakingly revealed last June, plays a big a role. So does the failure of too many state medical boards to discipline serial medical offenders -- and the failure to require full disclosure -- of such behavior.

Two favorite whipping boys for the president and his allies are frivolous lawsuits and contingency fees, where trial lawyers take a case for no fee but a guaranteed piece of any action, usually ranging between 20% and 40% of a final judgment. Yet contingency fees not only enable those without means to get legal representation but actually discourage frivolous lawsuits: Why sue frivolously if you only get paid if you win?

Proponents of genuine reform reject the hysteria and hyperbole of the special-interest lobby. "There are some significant dislocations of some elements of the medical profession," notes Duke University law professor Tom Metzloff. "But the system is not bankrupt; most of the time it reaches sensible interests." Professor Metzloff would like to eliminate punitive damages, which rarely materialize, but not limit awards for pain and suffering, often very real. Too much of the cost of litigation is transactional -- increasingly expensive expert witnesses as well as legal fees -- and the Duke law professor thinks a sliding scale for lawyer's fees, like California adopted years ago, is meritorious as long as it is set high enough that plaintiffs without means can still be heard. In California, some lower-income victims have been shut out of legal redress.

But George Bush and his allies propose ill-advised tort reforms that would hurt innocent victims and are outrageously hypocritical. Some self-styled conservatives talk about federalizing tort cases simply because that venue would be friendlier; others want to take cases away from sympathetic juries. They fail, as Houston attorney and devout Republican Andrew McKinney notes, to "offer a rational explanation of why juries are okay to take a man's life on the criminal side but are not competent to put a dollar value on an innocent victim's life on the civil side."

Feb. 24, 2003

Med mal reform is bad medicine

by Joanne Wojcik

Linda McDougal, the Wisconsin woman whose doctor mistakenly performed a double mastectomy on her even though she was cancer-free, has decided to become the poster child against medical malpractice tort reform.

At the risk of sounding like a liberal, I'm with her.

The tort system's fundamental moral purpose is to punish those who harm others, and, where feasible, to force them to pay restitution to their victims. Capping doctors' malpractice liability for noneconomic damages at $250,000-which is less than one year's salary for most of them-effectively removes the deterrent the tort system is meant to create.

Even the president's Council of Economic Advisors acknowledges that the existing tort system promotes patient safety. The council says that the ability of a patient to file a lawsuit "provides an additional incentive for the physician to follow good medical practice."

According to a March 2000 report by the Institute of Medicine, between 44,000 and 98,000 people die each year, and many more-such as Ms. McDougal-are injured by preventable mistakes. In addition, about 1 million medication errors occur in hospitals each year.

That's not all. The Centers for Disease Control and Prevention estimate that some 2 million hospital patients develop infections that result in another 90,000 deaths each year. To put these figures into perspective, the Journal of the American Medical Assn. estimates that physician negligence causes the equivalent of one jumbo-jet crash every three days!

Yet despite this epidemic of errors, fewer than 2% of the victims of medical malpractice ever sue their doctors, and, when they do, fewer than 10% of the suits make it to a jury. Even then, awards rarely come close to the magnitude of the harm that's been done. In fact, the median payment to a victim of medical malpractice in 2000 was just $125,000, according to the National Practitioner Data Bank, not $1 million as reported by Jury Verdict Research, the source that advocates of medical malpractice liability reform cite most often. In fact, verdicts of $1 million occur in only 4% of medical malpractice cases, and they are usually reduced to a median of $235,000 upon final judgment.

Why the discrepancy in the figures? Well, as its name suggests, JVR collects only jury verdict information. The NPDB, on the other hand, includes both verdicts and settlements, and 96% of all med mal cases are settled, generally for smaller amounts than courts typically award.

Contrary to the claims by advocates of tort reform, government data show that med mal awards have increased at a slower pace than health insurance premiums have over the past five years. While NPDB data show that the median medical malpractice payment rose 35% from 1997 to 2001-an average of 8.5% a year-the average premium for single health insurance coverage increased 39% over that time period, or an average of 9.5% a year.

If there must be a law limiting damages, it should make exceptions for particularly egregious acts of malpractice, such as "accidentally" removing a woman's breasts. And insurers should really underwrite this risk, charging higher premiums or even denying coverage to doctors who are repeat offenders, just as they do to drivers with poor driving records. According to the NPDB, just 5% of all U.S. doctors are responsible for 54% of all malpractice claims. If a doctor can no longer buy insurance because he has been sued for malpractice numerous times, he or she shouldn't be treating patients.

Does anyone really think that Ms. McDougal's pain and suffering as a result of her permanent disfigurement is worth just $250,000? And what about that other woman, the one who really did have an aggressive form of cancer, whose lab results were mistaken for Ms. McDougal's? Will her life be shortened because she wasn't immediately treated? And, if so, is her pain and suffering worth only $250,000, too?

The NIS used the first part of the aphorism "to err is human" as the title of its report on the epidemic of medical errors plaguing this country. Fortunately, it didn't propose as a solution the second part, "to forgive, divine."

No, I think it is appropriate that the threat of losing their livelihood hovers, like the sword of Damocles, over doctors' heads. They are, after all, taking our lives in their hands.

Senior Editor Joanne Wojcik's commentary appears periodically and on www.businessinsurance.com. She can be reached at jwojcik@crain.com.

The News & Observer Raleigh, NC

Monday, January 20, 2003

Editorial/Opinion

Wrong medicine

Few patients have patience, and understandably so. Disease and injury warrant immediate attention from trained professionals, but that's not always happening in rural areas of the country that have been deserted by doctors looking for cheaper insurance against medical malpractice lawsuits.

Hospitals are shutting down services prone to lawsuits.Some doctors are fleeing, retiring or even staging protests over rising prices on malpractice insurance. Though the worst problems seem to be in chronically under-served areas, they have the attention of President Bush, Congress and many state legislatures.

North Carolinians, though, must beware of solutions that are worse than the problem. Here, malpractice insurance premiums imposed by the state's largest carrier, Medical Mutual of North Carolina, have increased a modest 3.5 percent per year since 1989, although last year they rose a more substantial 12 percent.

Those whose agenda has long included "reforms" to the legal system -- Bush, for one -- pin the blame on frivolous lawsuits. Their simple answer is to find ways of lowering the payout to patients who take their medical-care grievances to court. The president is renewing his call for a $250,000 cap on jury awards for pain and suffering caused by malpractice.

For North Carolina, that would be akin to taking a meat ax to carve a turkey. Medical malpractice lawsuits have increased here only one-tenth of a percentage point each of the last three years when population increases are taken into account. What's more, malpractice insurance premiums historically rise during stock-market slumps, when insurance companies' investments lose money and crimp their bottom line. Premiums can be expected to moderate when the market's momentum shifts upward again.

Over the last two decades, this state has been blessed with increasing numbers of doctors. Their distribution, though, has continued to favor urban areas over rural ones. Targeting the 18 counties where the number of doctors has declined with incentives to attract medical practices would make far more sense than tinkering with patients' rights to recover damages for negligence proven in court.

As just one example of common medical mistakes, surgical teams leave sponges, clamps and other tools inside 1,500 patients every year, The New England Journal of Medicine now reports. Whether the risk of legal action helps prevent even more mistakes is a hard question. But in any case, any changes in the legal system are best left to states where access to medical care is demonstrably affected by malpractice insurance -- and even in those cases there may well be fairer ways to keep medical care accessible.

Chances are that a campaign issue is what Bush hopes to find now that Senator Edwards, a former trial lawyer, is officially running against him. What's clear is that where Tar Heel patients are concerned, federal caps on the amounts juries can award would do a needless injustice.

Sunday, January 19, 2003

EDITORIAL

THE WRONG PRESCRIPTION MALPRACTICE

THE solution to soaring medical malpractice insurance rates and rising health care costs, President George W. Bush said last week, is to cap pain-and-suffering awards and limit the victims' ability to sue.

That's the wrong prescription.

Missouri already caps pain-and-suffering awards, yet malpractice insurance rates here continue to rise sharply. They continued to rise in Nevada after it capped pain and suffering awards last year. The same is true in Mississippi.

Mr. Bush's proposals will enrich giant insurance companies. But they won't control health care spending, slow the increase in malpractice insurance premiums or address very real problems in the way we handle malpractice cases.

Rising malpractice insurance premiums have nothing to do with an increase in the number of lawsuits, frivolous or otherwise. Suits actually declined by about 4 percent nationwide between 1995 and 2000. In Missouri, during 2001, about half as many claims were filed as in 1987.

Few claims actually go to trial. For those that were decided in favor of patients, either through jury verdicts or settlement agreements, the median payment by a doctor was $135,000. That's hardly excessive for patients who are disabled permanently by a doctor's negligence. Multimillion-dollar malpractice verdicts that grab headlines are rarities, not the rule.

Mr. Bush's anti-patient proposals would have no effect on soaring health care costs. Liability insurance premiums make up just 3.2 percent of the average doctor's expenses, a federal Medicare panel found. That rose 4.4 percent in the past year. What's behind the increase? The stock market. During the 1990s, insurance companies invested heavily in the stock market and used hefty returns to cut premiums an average of 32 percent. Returns haven't been nearly as good recently.

There's plenty of room to improve the way malpractice cases are handled. The majority of malpractice victims never file suit, because they never find out about the mistakes that hurt them. Elderly victims are of ten shut out of the system, because lawyers don't want their cases. Some suits are based on bad outcomes, not medical errors. And the same types of negligence can produce wildly differing damages in different jurisdictions.

There's also room to improve the insurance system, spreading the risk among doctors with different specialties, for example. Just 5 percent of all doctors account for 54 percent of malpractice payouts. If states' medical boards did a better job of disciplining doctors, there likely would be fewer malpractice cases.

It's important to remember why malpractice laws exist in the first place: to help compensate people who are injured seriously by the negligence of a doctor or hospital. Improvements to that law shouldn't come at patients' expense.

http://www.nj.com/search/index.ssf?/base/news-0/1045552419150900.xml?starledger

Doctors have put a cap on the truth

Tuesday, February 18, 2003

The demonstrating doctors have been playing a catchy but monotonous and thoroughly misleading tune about malpractice.

For all the screaming about runaway juries and big malpractice awards, the evidence is not there. In the meantime, physicians and their malpractice insurance companies have kept silent on issues that call for facts and answers. The silence is no longer merely suspicious, it is sinister.

A study by the state Administrative Office of the Courts did not find the big spike in suits and jury awards the Medical Society of New Jersey and the demonstrating doctors claim as the reason some of them have been hit with untenable increases in malpractice premiums.

Last year, the number of suits dropped from 1,776 to 1,656, and the doctors won most of the time. Of 205 cases that went to jury verdict, the doctors won 151. Where are the "runaway juries" handing over millions to anyone with a sob story?

The fact that juries sometimes find malpractice should not be brushed aside. In 54 cases in which juries did, the awards averaged $939,000, with 18 verdicts of $1 million or more, including three for more than $5 million.

But half the verdicts were for less than $300,000. Yet the doctors, by walking out on their patients, are blackmailing the state for a no-exceptions legislated cap of $250,000 on judgments for pain and suffering.

They have presented no evidence that most people get anything close to that or that those who do are not entitled to what they get. It may be that inflation in medical malpractice awards reflects the higher costs of the medical care, rehabilitation, lost wages and other calculated legitimate economic damages -- costs that will remain even if we set a cap on pain-and-suffering awards.

Keeping cases out of court seems to be the major purpose of the $250,000 limit doctors want on these awards. That is how the system works in states that have caps. It is a figure that makes cases less attractive to the attorneys capable of mounting the resources required to win cases the insurance companies decide to contest.

A good part of any malpractice award is eaten up in legal costs. That is a shameful fact of our litigation-based system. But will capping pain-and-suffering awards at $250,000 make things better for people with injuries to care for or just help insurance company bottom lines?

The state study found $1 million awards. But the study cannot tell us how often those awards were reduced on appeal or through the negotiations that go on while an appeal is pending, let alone the details that may show the awards were justified. In some cases, deals that put a floor and a ceiling on what a patient will get are made before a jury can speak. Those deals, not the jury, determine the size of the check the insurance company eventually writes.

Most cases are settled out of court, often with confidentiality agreements that shield the identities of problem doctors who patients should know about. If doctors get their cap, will we get more truth and light?

The doctors have railed about a $42 million California jury award to a 2-year-old child. But the child's family settled for far less -- $2 million from one defendant, $1.9 million from another, minus $914,000 in legal costs. That money is for a child who once was healthy but is now blind, has cerebral palsy and a host of other problems. The malpractice suit said the child had an injury that might have been treated successfully had doctors performed a CAT scan on any of the three occasions the parents begged them for the examination, even as their son got worse.

What insurance companies pay is not always as much as the awards that make headlines. Many doctors made that point themselves during the malpractice crisis of the 1970s. The doctors accused insurance companies of setting aside too much in reserve against future claims. Why aren't doctors raising the same complaints now?

They are not because most doctors are now covered by insurance companies that doctors themselves run and invest in, companies they organized in response to the last crisis.

The Medical Society of New Jersey is one of the single largest shareholders in the medical malpractice company that until recently covered most of the doctors in this state. That company ran into money trouble, at least in part because of a decision to expand into other states. A board replete with officers of the Medical Society made that decision. A company with New Jersey hospital executives on its board is the other major carrier in the state.

There are good doctors who have suddenly been hit with premiums they cannot afford. Why? The question has not been fully answered. Nor have the data supporting the premium increases been provided.

Until they get the answers, our lawmakers must resist the pressure to change our legal system in a panic and set up funds that might well provide a taxpayer subsidy for the very doctors who need to be drummed out of practice.

Lawmakers should be open- minded about possible remedies for malpractice. But the doctors have reduced the conversation about reform to a chant for a $250,000 cap or else. There are many other possible remedies. In California, which pioneered the caps and saw them have little effect on premiums, there are also tough state regulations on premiums, brought about by a voter initiative, Proposition 103. (More on that tomorrow.)

The public response to the doctors and their demands should be an unrelenting demand for the truth.

Friday, January 17, 2003

Insurance reform is real answer

THE LEGISLATURE is poised to commit malpractice of its own as it tries to solve the medical malpractice insurance crisis in the state by passing the insurance industry and doctors' dream bill. And it is no wonder that both like the bill as it's shaping up. It gives them absolutely everything they've asked for.

But the entire bill is based on the false assumption that following the "California model," by capping punitive damages and instituting other limitations on lawsuits will lead to lower malpractice insurance premiums.

As evidence, supporters point to a study by the federal Department of Health and Human Services that found that malpractice rates in California went up only 107 percent since the state passed a $250,000 cap on noneconomic damages, along with other "reforms" in 1975, while the national increase was about 500 percent.

Doctors would have legislators and others believe that this can all be attributed to malpractice tort changes. They conveniently forget that California passed Proposition 103 in 1988. That measure instituted insurance reform, not tort reform.

A decade after the Medical Injury Compensation Reform Act of 1975 was passed, malpractice rates in California had increased by nearly 30 percent, after adjusting for inflation. The rates during that period largely tracked the national average, according to a study by the Foundation for Taxpayer and Consumer Rights.

Only after Proposition 103 passed did malpractice insurance rates - and other insurance rates - start to decline in California while they increased nationwide.

The lesson for West Virginia should be clear: insurance reform, not tort reform, is the real answer.

What did Proposition 103 do? Well, for starters, it instituted an immediate rollback in insurance rates and billions of dollars in rebates. You would think insurance companies would have lost their shirts. But, in fact, net profits have gone up for California insurance companies. That's because Proposition 103 disallowed unnecessary costs: excessive expenses, "bad-faith" lawsuit costs and bloated executive salaries, to name a few.

The law also required insurers to open their books to justify rate increases. As Ralph Nader said in a 2001 column, "For the first time, insurers were provided with financial incentives for efficient performance, rather than simply being able to pass on costs (justified or not) to consumers."

Here is the answer West Virginia has been looking for to insurance problems. The answer is not taking away consumer rights. The answer is to better regulate the insurance industry to provide real incentives for insurance companies to operate efficiently.

But that's not what the Legislature is doing. Instead, it is capping noneconomic damages, which means, essentially, that the lives and health of poorer malpractice victims (the old and the young) will be worth less than those of wealthy victims who have lots of earning potential.

And, this is my favorite: the House has even decided to increase the bankruptcy protection for doctors, even though no doctor has ever been forced into bankruptcy by a malpractice claim. While ordinary West Virginians only get a $25,000 property exemption (essentially to help protect those in bankruptcy from losing their homes), doctors get a $250,000 property exemption.

Now, if doctors are hurting as bad as they say because of malpractice premiums, how can they afford such expensive homes? And where is the fairness in singling out doctors for such special protection under the law?

Come to think of it, why aren't those people who howl in outrage at the thought of giving homosexuals "special protection" by including them in hate crimes and discrimination laws going berserk against this much clearer instance of special protection granted to a specific group?

Finally, the House is doing absolutely nothing about the real root of the problem, which is medical malpractice itself.

According to a study by Public Citizen, West Virginia has the second highest percentage of doctors who have lost or settled two or more malpractice cases. These repeat offenders are responsible for a large percentage of malpractice verdicts and settlements.

Ten percent of the doctors who have been sued in this state are responsible for 55 percent of the verdicts and settlements. Clearly, cracking down on bad doctors and instituting procedures to help reduce the number of medical errors would make a huge difference in the amount of money paid to malpractice victims by reducing the number of victims.

Insurance reform is the right prescription here, along with efforts to reduce the number of patients hurt by medical errors.

I doubt the legislators will be able to get that message, though, with the current stampede toward tort reform.

Radmacher is the Gazette's editorial page editor. He can be reached at 348-5150, or by e-mail at danrad@wv gazette.com.

Sunday, January 19, 2003

OPINION

Jury award caps are easy to sell, but are no medical malpractice solution

It isn't so much that a cap on awards in medical malpractice cases, proposed Thursday in Scranton by President Bush, is a bad idea. More troublesome is that a cap won't resolve the problems that medical malpractice is causing for the health care system in Pennsylvania and other states. We agree with the President that Americans are too quick to sue, but that inclination arises from complicated causes, including the 1980s deregulation that allows lawyers to aggressively advertise for clients.

A $250,000 cap on pain and suffering awards (money given on top of covering actual medical and other economic losses) is not likely to dissuade those who already are inclined to sue. A quarter-million dollars is serious money to most people, even after legal fees have been deducted. More importantly, we need to acknowledge that the size of court awards is only one cause of the distress that medical malpractice insurers are feeling.

For instance, insurance companies invest, and rely heavily, on the bond and equity markets. Interest rates and stock market earnings have fallen in the last two years, putting pressure on the rates that insurers charge the physicians and hospitals that they cover. Furthermore, the medical malpractice insurers have proved to be inexpert at underwriting and pricing their products. The cost of buying coverage is crazily cyclical as a result.

One of the reasons insurers are in this fix is that they alone among financial-sector businesses are not federally regulated or even supervised. That leaves 50 state insurance departments to control them,
and in many places, they are no match for the companies. Pennsylvania, where executives move back and forth among the companies and the Insurance Department, is Exhibit A of this problem.

Clearly, the size of jury awards alone is not driving the medical malpractice crisis, but politics complicates the search for better solutions. President Bush and the Republicans tilt toward the insurers because trial lawyers are perceived to be pro-Democratic. On Thursday, Gov.-elect Ed Rendell was not invited to join the President, but he made his points elsewhere. It would take two to three years to effect lawsuit caps, he says, but doctors are closing their offices now. Better relief would come from higher Medicare and Medicaid reimbursements to doctors. It's easy for Mr. Rendell to call for more federal dollars, of course, but his point about that side of physicians' economic crunch is on target.

Then there is the fact that medical mistakes do happen, but that a small percentage of doctors have lost or settled malpractice cases. A new report by the Public Citizen consumer group says that only 5 percent of doctors with five or more malpractice payments have been disciplined by professional groups.  And, though legislators have tried, there is no transparent system for publicly identifying these doctors.

With bills now introduced in Harrisburg and Washington seeking to establish award caps, President Bush's topic Thursday is going to get a lot of discussion. Here's hoping that the other major, complicating factors of medical malpractice are discussed, as well.

OPINION

Palm Beach Post

Sunday, February 2, 2003

Give prescription, not placebo

By Dan Moffett, Palm Beach Post Editorial Writer

Floridians are prone to an unhealthy admiration of Californians.

We deceive ourselves into believing that the Golden State has found solutions for all the problems that confound the Sunshine State. We reason that what works in California has to work here.

So theme-park theory, environmental lawmaking, highway design, education reforms and great social experiments that originated on the Left Coast invariably make it to the Peninsula. Too often, Floridians embrace bad ideas with blind enthusiasm just because they came out of the California laboratory.

Since Florida faces a crisis over medical malpractice insurance, it was inevitable that a California model would surface as the ideal solution. A task force appointed by Gov. Bush to study doctors' soaring insurance premiums reported in December that Florida should follow California's lead and cap lawsuit damages. Florida's doctors and hospitals heartily concurred.

Give us the California Model, they said, and we'll be just fine.

Naturally, the insurance companies agreed. They said outrageous malpractice lawsuits were driving them out of the state.

Give us the California cap -- limit noneconomic damage awards at $250,000 -- and the Florida system will work just fine, insurance companies said.

President Bush climbed aboard last month. He endorsed the California Model for the nation.

"We're a litigious society," he said. "There are too many lawsuits in America, and there are too many lawsuits filed against doctors and hospitals without merit."

By capping pain and suffering damages, President Bush said, physicians' malpractice premiums will fall to reasonable levels. After all, according to the California Medical Association, Los Angeles doctors are paying about $42,000 a year less in premiums than their counterparts in Florida, Michigan and New York.

All hail the California Model!

But are we really sure exactly what that model is and how well it has worked?

California limited noneconomic damages in 1975 with approval of the Medical Injury Compensation Reform Act. The cap was set at $250,000, and it remains there today. Twenty-eight years ago, a quarter-million dollars approximated 20 years of earnings for the average American. Today, it is not half that. Shouldn't somebody wonder about a system that values 1975 dollars and 2003 dollars the same?

But never mind that. The most important issue for Floridians is whether the cap has been effective in reducing physicians' insurance premiums. Californians quickly found that it was not.

Quite the contrary, rates continued to soar after the caps took effect.

According to the Foundation for Taxpayer and Consumer Rights, a California watchdog group, the state's malpractice premiums rose 175 percent in the decade after the cap began. In 1988, faced with a crisis similar to Florida's today, California voters passed Proposition 103, a landmark insurance reform initiative that brought radical changes to everything but life insurance and workers compensation. The referendum temporarily froze malpractice premiums and also required a 20 percent across-the-board rollback on rates. Only then did the system stabilize.

Between 1988 and 2000, because of Prop 103, California malpractice premiums fell 8 percent, while the nation's went up 25 percent. Adjusted for inflation, the state's premiums are down 35 percent since the legislation passed.

President Bush, the governor's panel, Florida's physicians, hospitals and insurance companies omit references to Proposition 103 when touting the effectiveness of noneconomic caps. In fact, nothing about California's experience suggests that limiting jury awards will reduce malpractice premiums, or even slow their rate of increase.

What did work was capping premiums. Insurance companies that had threatened to pull out of the state if regulations passed did not. Physicians who had threatened to move elsewhere stayed. Predictions of a meltdown from the consumer backlash proved exaggerated.

Floridians who point to the California Model as a solution to the malpractice crisis should be careful where their fingers aim. This is no time to copy the wrong thing.

dan_moffett@pbpost.com

Sunday, January 12, 2003 Outlook Editorials

BAD MEDICINE / Doctors' malpractice lies at heart of insurance crisis

Texas Gov. Rick Perry has declared the high price and limited availability of medical malpractice insurance to be an emergency. He wants the Legislature, which convenes this week, to limit punitive damages awarded to the victims of malpractice and to regulate the fees going to their attorneys.

The volume of litigation is high, and some juries have awarded damages of tens of millions of dollars. As a consequence, insurance companies are declining to issue medical malpractice policies or raising rates to astronomical levels.

However, a look at the data does not confirm the charge that the wave of malpractice lawsuits is mostly frivolous and the damages unwarranted. On the contrary, the evidence strongly suggests that the medical malpractice insurance crisis is at least partly due to actual malpractice and the failure of the medical profession to adequately supervise its members.

Just under 35,000 licensed physicians practice in Texas. Formal complaints against Texas doctors have nearly doubled since 1996, and so has the number of investigations opened by the Texas State Board of Medical Examiners.

In the first three months of 2002, the board began 1,725 investigations, discarding thousands of other complaints. Yet during the same time period, the board took only 187 disciplinary actions against doctors, from revoking licenses to assessing modest fines.

At its December meeting, the state board revoked or required the surrender of 10 doctors' licenses, but allowed three of the doctors to continue to practice on probation. It suspended 15 doctors, but allowed nine of them to keep treating patients. It restricted 13 doctors, reprimanded four and fined 15.

The list of impairments, drug addictions, bogus treatments and botched operations compiled by these doctors is enough to curdle the blood of every patient.

A resident at the University of Texas Medical Branch in Galveston drove his car off the seawall while dosing himself intravenously with narcotics. It is impossible to know how many patients he endangered before he was suspended. If he completes drug treatment, he might practice again.

A surgeon had his license revoked only after a long record of botched operations and drug abuse. He failed to report the 12 malpractice suits filed against him.

And so it goes down a list of 55 physicians who treated patients while drunk or drugged, or whoseactions were likely to defraud the public or endanger patients, or who fulfilled the societal function traditionally performed by drug dealers on the street.

In many cases, these doctors' incompetence and impairments were known to colleagues and supervisors long before discipline was meted out. Some of these offenders will be given a second or third chance to practice medicine in Texas.

The 14th Court of Appeals, which sits in Houston, just issued an opinion guaranteed to make matters worse. In overturning multimillion-dollar damages against a hospital awarded to a brain- damaged patient, the court ruled that hospitals are not liable for botched operations just because they know a doctor is taking drugs and allow him to keep operating.

In order for hospitals to be liable for damages, the court ruled, patients must prove that hospital officials actually wished them to be harmed. If not overturned by the Texas Supreme Court or the

Legislature, this ruling is practically an invitation to lax supervision leading to malpractice.

When Rep. Tom Craddick visited the Chronicle's Editorial Board last month, the presumptive speaker of the Texas House was asked if the Legislature might ease the malpractice emergency by trying to get bad doctors out of the medical corps.

The Midland Republican said, "You can't legislate morality." This no doubt will come as a surprise to some of Craddick's supporters in the House, who hope to use the Republican Party's ascendancy to advance their moral agenda.

Limiting the ability of mistreated patients to collect monetary damages might lower the price of medical malpractice insurance, but it will do nothing to ease the suffering that incompetent or criminal doctors inflict. When the Legislature considers emergency malpractice reforms, it should also bear in mind the human cost.

Wednesday, January 22, 2003

Medical malpractice at a discount -When the loss of happiness and fulfillment is worth practically nothing

By Steven Lubet. Steven Lubet is a law professor at Northwestern University.

If you want to know what's wrong about President Bush's medical malpractice reform plan, just look at the case of Linda McDougal. In May 2002, McDougal was diagnosed with breast cancer. A biopsy revealed a malignancy so aggressive that her only hope for survival was a double mastectomy, followed by chemotherapy and radiation. Two days after the surgery, however, McDougal's doctor delivered the bad news--she didn't have cancer after all. The laboratory had mixed up the tissue samples, giving McDougal another woman's results, and two physicians had failed to check her name against the test records before scheduling the operation. In every patient's nightmare, her two healthy breasts had been amputated because of a pathologist's mistake.

Under President Bush's proposal, McDougal's ability to sue for malpractice would be drastically limited, primarily to her so-called "economic losses." In this case, that means she would not have to pay for the needless mastectomies or the egregious lab work, she would be reimbursed for reconstructive surgery, she would receive her lost wages (if any) during recovery and she would be entitled to a lifetime supply of prosthetic bras.

Of course, her greatest losses are non-economic: a lifetime of disfigurement, discomfort and inescapable anguish. Under the Bush plan, however, her compensation for "pain and suffering" would be limited to $250,000, out of which she would also have to pay her lawyer. McDougal is 46 years old, but what if she had been a younger woman, yet to bear children? In that case, her economic losses would also include the anticipated cost of infant formula. But the sorrow of being unable to nurse her children would not increase the damage cap at all. Under the chilling logic of tort reform, the sum of a person's life is derived from economic activity--wages and bills--while the devastating loss of happiness and fulfillment is worth practically nothing.

There is no doubt that the medical malpractice system has many flaws. Lawsuits are expensive, time-consuming and uncertain. They are sometimes baseless, and they always distribute resources badly, with too much money going to attorneys and not enough to victims. Sometimes juries go too far, but it is a myth that they are easily swayed by smooth-talking lawyers. In fact, defendants actually win about 70 percent of malpractice trials, and judges are not shy about reversing or reducing unreasonable jury verdicts.

Ironically, Bush's damage caps do almost nothing to address the issue of frivolous cases, which are usually small-ticket nuisance suits aimed at extracting quick, cheap settlements. Instead, the caps will penalize the most severely injured patients with the strongest claims, since they are the ones most likely to win substantial verdicts at trial.The caps will benefit insurance companies, and the relatively few incompetent doctors who put their patients' lives at risk. They will shield hospital chains and HMOs from considerable liability. But they will not eliminate, or even much reduce, most physicians' fear of unfounded litigation, since the vast majority of those cases will be unaffected by the caps.

Linda McDougal's tragedy is not all that unusual. The Institute of Medicine (run by doctors, not lawyers) has reported that "at least 44,000 and perhaps as many as 98,000 Americans die in hospitals each year as a result of medical errors," a number that would be much higher if it also included serious non-fatal injuries.

Frankly, doctors and hospitals sometimes need to be sued. At one Connecticut hospital, for example, the cardiac unit experienced an appallingly high post-surgical infection rate of more than 20 percent, much of which was attributed to poor sanitation in the operating room. Corrective measures were taken only after the initiation of litigation, reducing the infection rate to near zero. While the insurance and medical establishments hate to admit it, the threat of liability can provide a powerful incentive to limit risk by improving care. Damage caps reverse that incentive; they limit risk exposure across the board, without regard to treatment standards.

Linda McDougal's case, and others like it, should remind us that medical malpractice is a significant problem that should not be trivialized or discounted. Litigation abuses are also troubling and cannot be ignored. Courts have always had the authority to throw out frivolous suits and reduce extravagant awards in individual cases. Meaningful reform legislation would enhance that power, providing clear standards for judges and juries, rather than impose an arbitrary limit on legitimate damages. Regrettably, President Bush's plan is a false remedy. It offers good doctors almost no protection against trumped-up litigation, while crippling the rights of genuine victims.

Sunday, March 2, 2003

Editorial

OUR OPINION: Girl's death may dim view of tort reform

In family snapshots, Jesica Santillan looks cheerful, upbeat, even healthy, underlining the tragedy of her death. The 17-year-old suffered from "restrictive cardiomyopathy," which enlarges the heart and weakens the lungs.

Jesica's one fragile hope for recovery --- a heart-lung transplant --- was doomed by an extraordinary mistake in the operating room at Duke University Medical Center. Surgeons performed a second transplant, but it was too late to save her. What must those days have been like for Jesica's family?

Yet, Jesica's tortured final days may have an unexpected legacy: The blood-type mix-up that hastened her death seems to have slowed the tort reform juggernaut in Congress. While that may not stanch her family's grief, it is a silver lining of sorts.

During the first operation, surgeons gave Jesica a heart and lungs from a donor with the wrong blood type; hers was O, the donor's was A. That kind of error is almost always fatal. After the publicity surrounding Jesica's case, Congress must be reluctant to limit monetary awards in malpractice cases.

It should be.

The misnamed tort reform movement, actually a scheme to curb justice for injured plaintiffs, was never anything more than another sop to Big Business, which has taken advantage of Republican dominance to gain every possible benefit --- from deregulation that allows it to rip off consumers and investors to tax breaks that allow it to rip off the U.S. Treasury. Among other things, "tort reform" would allow insurers to make up for lost investment income by cheating plaintiffs who were harmed by medical errors.

Karl Rove, the Machiavelli of the Bush White House, claims credit for talking the president into adding tort reform to his platform during his 1994 Texas gubernatorial campaign. In an interview for a new book, "Bush's Brain," Rove told Wayne Slater and Jim Moore: "The two issues, education and juvenile justice, were on his agenda list. . . . Later, we added tort reform. I sort of talked him into that one."

At the time, Rove was also a consultant to tobacco giant Philip Morris, which was pushing for . . . guess what?

Despite (or because of) the obvious connections to Big Business, the tort reform movement picked up steam last year, fueled by news accounts of surgeons refusing to operate or obstetricians quitting altogether because they couldn't afford to pay soaring premiums for medical malpractice insurance. The docs are right about this much: Malpractice insurance rates are going through the roof.

What physicians are wrong about is the cause. The data about medical malpractice do not show that insurers have been soaked. In fact, only one in eight malpractice victims ever files a claim for compensation, according to a 1991 Harvard study. That, despite the fact that an estimated 44,000 to 98,000 patients die every year as a result of medical errors.

According to Americans for Insurance Reform, the average medical malpractice insurance payout, over the last decade or so, was $28,524 --- a far cry from the multimillion-dollar payouts of insurance industry mythology. (Many high jury awards are substantially cut on appeal.)

Insurance companies may be losing money, but that's due to bad business decisions. Like so many other companies, they believed the '90s boom, which fattened their stock portfolios, would last forever. So they slashed premiums to buy market share. Now that their investments have
soured, they want to recover their losses with sky-high premiums.

As for Jesica's family, it's not clear whether they would be eligible to sue (they are illegal immigrants) or whether they would want to. But even if they don't, their daughter's case could slow the unseemly rush to limit justice for victims of medical malpractice. Jesica's story debunks the stereotypes about gold-digging patients looking to score easy cash.

Cynthia Tucker is the editorial page editor. Her column appears Sundays and Wednesdays.

cynthia@ajc.com

Monday, February 10, 2003

Opinions/Editorials

Bush's malpractice plan too simplistic

PRESIDENT George Bush has revisited the issue of skyrocketing medical malpractice insurance, proposing a plan that would put a cap on medical malpractice awards. The proposal, promoted again in his State of the Union address, pits the legal and medical systems and lobbyists against each other.

However, the president's plan is simplistic, focusing only on one aspect of a complex problem that is undermining the delivery of health care. A more comprehensive approach is needed to reform the medical insurance system.

The surgeons' walkouts in West Virginia last month and in New Jersey last week were dramatic illustrations of a problem that is affecting doctors' availability -- escalating medical malpractice insurance.

Surgeries were canceled at four West Virginia hospitals after more than two dozen surgeons walked out to protest the high cost of malpractice insurance.

One general surgeon reported he had to borrow money twice the previous year to pay his $73,000 malpractice insurance bill, expected to go up to $100,000 next year.

In New Jersey, physicians withheld nonemergency services, eliminating elective surgeries and diagnostic tests.

A few days after the walkout in West Virginia, 12 surgeons stayed home in Mississippi on a Monday to protest insurance companies that had hiked their premiums or dropped their coverage. The walkout affected four hospitals. In Pennsylvania, a similar walkout by surgeons was averted when the governor-elect promised to fight for $220 million in aid for doctors.

According to a recent survey in Georgia, one in five Georgia doctors has stopped doing high-risk procedures and hundreds of others are leaving the state or retiring because of soaring malpractice insurance rates.

In fact, the American Medical Association reports there are 12 states where high malpractice insurance premiums are forcing doctors to move, retire early or restrict their practice.

For example, in Florida from 2000 to 2002, premiums for internists increased by 62 percent; in Nevada the rates increased by 49 percent during the same period.

What business could survive such a steep jump in operating expenses? Of course, the biggest losers are patients who cannot find a doctor to treat them.

Six months ago, Bush pitched a plan to place limits on medical malpractice lawsuits, claiming the savings could help seniors pay for prescription drugs and provide health coverage for millions of Americans who don't have health insurance. He endorsed legislation sponsored by Rep. James Greenwood, R-Pa., that would among other things impose a $250,000 limit on noneconomic damages.

The bill narrowly passed the House; the Senate did not take any action on it. Greenwood is expected to reintroduce the bill.

While proponents of caps on malpractice awards point to California's caps and lower medical malpractice insurance premiums to bolster their argument, opponents say premiums in California only stabilized after other strict insurance regulations went into effect.

Consumer advocates point out malpractice caps can penalize the people who are in need of the money -- injured patients. It doesn't make sense to further harm people who have already been hurt in an effort to restrict the earnings of trial lawyers.

The issue of medical malpractice and the role of insurance companies, doctors and lawyers is far too complex to address by simply looking at caps on malpractice awards. The surgeons' walkouts put us on alert we need to take a comprehensive look at the problem of skyrocketing medical malpractice insurance and devise a solution.

But we also need a comprehensive plan to deal with the general state of health care in our nation and California. Medical malpractice is but a part of that bigger, broader problem. How can we truly solve the former without addressing the latter?

http://www.usatoday.com/news/opinion/editorials/2003-02-10-oppose_x.htm

February 10, 2003

Tighten up on insurers

By Joanne Doroshow

Tuesday, 50 survivors of medical errors will travel to Washington, D.C., to speak to lawmakers about misguided proposals to solve doctors' insurance problems on the backs of injured patients.

These are the forgotten faces in the debate over how best to reduce skyrocketing insurance rates for some doctors. Insurers and the medical lobbies propose one solution: limiting compensation to patients injured by medical malpractice. It would be one thing if capping jury awards would do anything at all to help doctors who are being price-gouged. But it won't.

In the 1990s, medical malpractice insurance premiums rose far less than medical inflation. No matter how low they kept rates in order to gain market share, insurers made tremendous profits from investing premium dollars, mostly in bonds.

Bond interest rates are key in determining investment income for medical malpractice insurers. Now that interest rates and investment income have plummeted, many insurers are trying to recoup by raising rates 100% or more. This "cyclical" price gouging is nothing new. The exact same scenarios occurred in the mid-1970s and mid-1980s, precipitated by dropping interest rates. At the same time, actual payouts to victims by insurers remained modest — today and for the last decade, only $28,524 per claim.

Insurance companies typically try to cover up past pricing errors by blaming jurors and patients for insurance price jumps. This, in turn, leads to frenetic calls for legislative limits on patients' rights to sue. Indeed, during the past two crises, most states enacted restrictions on patients' rights to file legal claims, listening only to insurance companies and organized medicine for guidance. Many of these states, like Missouri, are in crisis again today. These "solutions" don't work. It's time for a second opinion.

Consumer advocates have long known that the only way to stop periodic insurance crises is to get better control over the business and accounting practices of the insurance industry. That involves stricter rate regulation, public oversight and repeal of the industry's extraordinary exemption from antitrust laws.

Until we do that, nothing will change. And patients always will be unjustly blamed for an insurance problem they did not cause.

Joanne Doroshow is executive director of the Center for Justice & Democracy, a public interest group that fights to protect the right to trial by jury.

Medical Mistakes, Not Lawsuits, Are The Problem

January 26, 2003

Tom Baker

Retro is the rage, and not just in cars and jeans. Retro is also the rage in the medical malpractice arena.

According to the president, the problem with medical malpractice is frivolous litigation and out-of-control juries that are driving doctors out of practice.

I think I've heard that one before.

The first time was at the dinner table in the mid-'70s, listening to my physician father report what he'd heard at his medical society meeting: "Frivolous litigation and runaway juries are driving doctors out of the profession."

The answer, the medical societies and their insurance companies said, was medical malpractice tort reform - to make it harder for misguided patients and their lawyers to sue.

What the medical societies didn't tell my father was that their own research showed that the real problem was too much medical malpractice, not too much litigation. Back in the mid-1970s, the California Medical Association sponsored a study on medical malpractice that was supposed to support the medical societies' tort-reform efforts. But, to their dismay, the study showed that medical malpractice injured tens of thousands of people every year - more than automobile and workplace accidents. The study also showed that, despite the rhetoric, most of the victims didn't sue.

The next time I heard about frivolous litigation and runaway juries driving doctors out of practice was while I was in law school in the mid-1980s. Medical malpractice premiums were back through the roof. And, once again, the answer from the medical societies and their insurance companies was tort reform.

That time, more people were skeptical about the claims of the medical societies. But organized medicine still knew best. Nobody had pulled together enough facts about the tort system. And hardly anyone knew about that buried California study.

This time around we have a lot more information. But you wouldn't know it from the president's message.

What do we know?

First, as confirmed by recent studies, we know the real problem is too much medical malpractice, not too much litigation. Most people don't sue, which means that victims - not doctors or their insurance companies - bear the lion's share of the costs of medical malpractice.

Second, because of those same studies we know that the real costs of medical malpractice have nothing to do with malpractice litigation. The real costs of medical malpractice are the lost lives, extra medical expenses, time out of work, and pain and suffering of tens of thousands of people, most of whom don't sue.

Cutting the real costs of medical malpractice requires reducing the amount of medical malpractice. Tinkering with tort law can't do that. As the Institute of Medicine and other independent experts have concluded, reducing the amount of medical malpractice requires fundamental changes in medical institutions.

Third, we know that medical malpractice premiums are cyclical and that it's not frivolous litigation or runaway juries that drive the cycle. The sharp spikes in malpractice premiums in the 1970s, the 1980s and today are the result of financial trends and decisions in the insurance industry, not sudden changes in the malpractice litigation environment.

Fourth, we can be fairly confident that caps on damages or other tort reforms won't cut medical malpractice insurance premiums - though they might increase insurance company profits. Independent researchers tried to prove that the 1980s-era caps on tort damages reduced malpractice insurance premiums, but they couldn't. They did prove, however, that the caps increased insurer profits.

Finally, we know that there is one thing that tort reform can be counted on to do. It will divert everyone's attention until the inevitable turn in the insurance financial cycle takes the edge off doctors' pain. That way, people can keep ignoring the real health problem.

Let's not make the same mistake again. Tort reform is a blame-the-victim strategy that hurts doctors as much as patients by distracting them from attacking the causes of medical error. Doctors are compassionate professionals who want to help their patients, not hurt them. But reducing medical errors requires more than compassion.

Injured patients and their lawyers are the messenger here, not the cause of the medical malpractice problem. Don't shoot the messenger.

Tom Baker is the Connecticut Mutual Professor and director of the Insurance Law Center at the University of Connecticut School of Law.

February 25, 2003

Value of Human Lives Shouldn't Be Capped

Marie Cocco

How much is Jesica Santillan worth?

What is the value of her pain and her suffering? What amount is adequate for the family of a child who followed hope's beacon, only to die because of a catastrophic medical mistake - the wrong heart and lung placed in her chest?

Is there a politically correct compensation for the cutting of that fragile chest a second time, during the desperate effort to reverse the error that turned out, in the end, to be irreversible?

And who should decide?

The White House and some members of Congress already know who should decide. It's they. The amount they've settled on for Jesica is $250,000.

That's what Jesica's family would receive under Bush administration and congressional proposals to place a nationwide cap on non-economic damages in all medical malpractice suits. It would not matter what state law would allow, or how a jury of average people might decide this anything-but-average case. It would not matter that the Santillan family relied on a system that is supposed to have fail-safes built in, but failed anyway.

If Jesica's relatives could show that the child's death was "wrongful," they might be able to collect another $250,000 in punitive damages. But since Jesica was a child with no earnings, there's no question about economic damages. They are zero.

And so compensation for "pain and suffering" - the words conservative lawmakers sometimes spit out with their sneers about "greedy trial lawyers" - would be all that could be recovered. That's $250,000, under their proposals.

Jesica's case is not typical. Medical errors don't usually make international headlines. More typical is the child who is given the wrong medicine, or a dose too strong for someone so young. More typical is the patient who contracts a life-threatening infection because a health-care worker didn't wash properly or clean instruments thoroughly.

Linda McDougal, a 46-year-old Wisconsin woman, underwent a double mastectomy only to be told afterwards that she never had breast cancer at all. A pathologist mixed up biopsy slides and paperwork with another woman's records. McDougal lost her breasts to someone else's cancer.

"My scars are not only physical, but emotional," McDougal testified before the Senate Judiciary Committee earlier this month. "After my breasts were removed, I developed raging infections requiring emergency surgery. Because of my ongoing infections, I am still unable to have reconstructive surgery."

McDougal, an accountant, lost $8,000 from missed work, the only "economic" loss she suffered and the only kind that would remain uncapped under the malpractice proposals. Like Jesica's family, she would be limited to receiving $250,000 for her permanent disfigurement.

Women, children, the elderly - those least likely to earn big paychecks - would be hurt the most by the caps. The magnitude of suffering doesn't count in this calculus. Stockbrokers are valued more highly than stay-at-home spouses.

"If you were to personalize it to your friend, your child, your spouse - this law would say $250,000 is all you could get," said Miles Zaremski, president of the American College of Legal Medicine, an international organization of physicians and lawyers.

Zaremski's Chicago practice represents more than 5,000 health-care providers. "I'm not a plaintiff's lawyer and I abhor frivolous lawsuits," he said.

Still he thinks the proposed caps are wrongheaded, a simplistic solution to a complex problem. A professional lifetime of studying malpractice has convinced him that rate hikes are cyclical. They are highest when the insurance industry's investment income is lowest. Two decades of "tort reform" in the states, including caps on damages, haven't changed the dynamic.

"Have we seen health care costs go down? No, they've continued to rise. Have we seen malpractice insurance rates drop? No," Zaremski said.

So damage caps are, at best, ineffective and at worst, inhumane. These are, I suppose, observations that might be made about juries, too.

Generally, though, juries are made up of sincere people who want to make the right decision if someone's been wronged. And they have one other qualification that makes them best to decide malpractice judgments. They don't take campaign money from the insurance industry.

http://www.nj.com/columns/ledger/mclaughlin/index.ssf?/base/columns-0/10447759539820.xml

Crack down on the few lousy doctors, and this crisis might be cured

By John McLaughlin

Sunday, February 09, 2003

Like baseball players, airline pilots and other oppressed workers before them, doctors in New Jersey found comfort last week in the unique solidarity that comes from hitting the bricks with colleagues.

Of the 22,000 doctors in the state, a good half participated in the medical walkout, closing their offices, juggling appointments and making sure their emergency cases were covered.

Last Tuesday, 4,000 lab-jacketed physicians went to Trenton, there to interface with legislators and flex a little muscle for the benefit of Gov. James E. McGreevey, who so far has not bought into the wisdom of adopting a $250,000 cap on jury awards to patients for the mental anguish and physical discomfort that accompanies accidents or carelessness by doctors. Pain and suffering, it's called.<, />

Such a step, the doctors say, will be so welcomed by insurance companies that they will cut the premiums they charge for medical malpractice coverage. The doctors contend that the high cost of insurance and its periodic unavailability are driving doctors out of the state and discouraging the highly skilled among them to back away from high-risk procedures. And all the fault of trial lawyers who play on the sympathy of jurors to milk the system for huge judgments for their clients and jackpot fees for themselves. Put a limit on what juries can award victims and presto, insurance rates will fall, simple as that.

Nothing's as simple as that.

And so long as the doctors and lawyers go on hurling abuse and factoids at each other, the only beneficiaries will be the politicians, with the lawyers giving to Democrats, the doctors to Republicans.

We've all heard stories about juries throwing money around blindly, fakers winning handsome judgments and malpractice premiums that run $200,000 a year. But we don't know whether we're looking at a temporary phenomenon or permanent systemic change.

Public Citizen's Congress Watch is an established government watchdog founded, 31 years ago by Ralph Nader. It's a little on the strident side, but it does reliable research. Anyway, the organization is out with a report that makes some points the doctors don't.

It says malpractice premiums last year were only 13 percent higher than they were 10 years ago. Payouts to patients amounted to $231 million in 1992 and just $235 million in 2001. And that there were 7 percent fewer malpractice suits filed in 2001 than there were in 1998.

The way Public Citizen, which opposes the $250,000 cap, sees it, premiums rise and fall with the securities markets because that's where the insurance companies invest the premium money after they collect it. Premiums rose sharply during the bear markets of the 1970s and'80s, too.

The report goes on to cite numbers showing that just 5.5 percent of the doctors account for nearly two thirds of the payouts. Of doctors responsible for four or more payouts, only 10.8 percent were penalized by the notoriously forgiving New Jersey Board of Medical Examiners. According to Public Citizen, 22 other states take a harder line on medical negligence than New Jersey.

But we do rank No. 1 for the vehemence of malpractice premium protests. Doctors in no other state have banded and bonded the way they have here.

They are as one in their contempt for what they see as the greed of trial lawyers and insurance companies, and they feel betrayed by patients who instinctively turn to their lawyers whenever something goes wrong.

But if 6 percent of our doctors are responsible for more than 60 percent of our malpractice awards, the trial lawyers have a point when they say the striking doctors' time would be better spent cleaning their own house.

So why are good physicians so timid about ridding their profession of the incompetents who are driving up insurance costs, not to mention harming patients?

It's because they know they will be sued by a trial lawyer who will tell you that bad doctors deserve the same representation as good ones.