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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