Posted on Fri, Jul. 22, 2005


Editorial | Medical Malpractice

This bill is no cure

The longer the epic legislative battles over medical liability or tort reform go on, the more the facts get in the way.

In that spirit, the U.S. House may rush ahead before the August recess with its leaders' ideas for yet another misguided crackdown on medical patients' rights. After all, every new study of the issue seems to damage the case for this bill.

The House proposal - whose many Republican cosponsors include Jim Gerlach and Joseph R. Pitts of Chester County and Frank A. LoBiondo of South Jersey - would slap a $250,000 cap on pain-and-suffering awards in medical malpractice lawsuits.

This old chestnut has been approved by the House before, but, thankfully, not by the Senate.

The measure also would limit redress for patients injured by medical errors in other ways. It would shorten the timeline for patients to prove they were hurt by malpractice, trim legal fees, and stretch out compensation payouts. And there's this troubling bouquet for drugmakers: legal immunity if the firms' FDA-approved potions later prove harmful, a la Vioxx.

The American Medical Association and other physicians' groups are as obsessed with their idee fixe of the damages cap as Captain Ahab was with the white whale.

Doctors have good reason to be upset by the upward spiral in medical malpractice insurance costs. It is unsustainable. The costs distort doctors' decisions about what specialties to enter and where to practice. This limits patients' choices. But research indicates that med-mal is not the major driver of overall health-care costs that doctors claim.

This problem has to be addressed by public policy - particularly in a major medical center such as Philadelphia. But what many doctors adamantly refuse to grasp is that their diagnosis is wrong, as is their preferred therapy. There is no one villain, no one magic bullet.

As William Sage of Columbia University, a top researcher on this issue, puts it: "The real world of medical malpractice shades gray."

The ridiculously low damages cap is a snake-oil cure. It would do little to cut insurance costs or trim the nation's tab for health care. That's what objective insurance, health-care and legal experts such as Sage have said for a long time.

A far better policy would be to give physicians in the hardest-hit specialties temporary help paying premiums, while working long-term on reducing medical errors and using a fair, transparent "no-trial" approach to compensating patients and families for the errors that do occur. (The legal reforms needed for a level playing field in court already have been done in Pennsylvania.)

Instead of embracing commonsense reforms, too many doctors can't stop pretending that hefty malpractice premiums are exclusively the fault of those nasty trial lawyers who have the unmitigated gall to sue hard-working, brilliant physicians. They ignore mounting evidence that other factors do more to fuel skyrocketing insurance premiums.

A new study shows that price hikes - rather than being driven by "runaway" jury verdicts - may have more to do with insurance industry pricing practices and trends.

Working for a consumer advocacy group in New York, Jay Angoff, the former state insurance commissioner of Missouri, compared premium rates and claims paid by the 15 largest malpractice insurers. He found that while the firms' malpractice claims remained level over the last five years, their premiums had surged 120 percent. Whoops.

The data raise the specter of price-gouging, even though insurers raced to try to discredit Angoff's figures. But it does seem that Gucci-clad lawyers may not be the main cause of doctors' pain.

When seeking causes and cures, don't forget medical errors. Since the landmark 1999 Institute of Medicine report on the toll such errors take, the health-care industry has been slow to get its act together, despite some promising initiatives.

The issues raised by the Center for Justice and Democracy (www.centerjd.org) study deserve a close look from insurance regulators, whose association happens to be headed this year by M. Diane Koken, Pennsylvania's insurance commissioner.

Koken would be a natural to peel back the onion leaves on this issue, because her state has been a prime med-mal battleground. She ought to seek out Sage and other researchers who have done such solid work on this issue to get the straight facts before prescribing a remedy.





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