Medical Malpractice Row Bedevils Legislatures

State lawmakers throughout the country are under pressure from doctors groups and insurance companies to cap the amount of money juries can award to victims of medical malpractice.

The issue has generated a flood of headlines and intense debate among interest groups. Doctors and insurance companies are pitted against trial lawyers and patients’ advocates, and legislators are caught in the crossfire.

“There’s certainly enough blame to spread around … Legislators need to sit back and look at the big picture because there’s really no easy way to deal with this,” said Cheye Calvo, a health policy expert at the National Conference of State Legislatures (NCSL).

Though lawmakers in several states grappled with the issue in 2002, it hasn’t gone away. Doctors in Florida, New Jersey, Pennsylvania, West Virginia and elsewhere are threatening to relocate to states where premiums are lower or quit practicing altogether. A trauma center in Nevada shut down last year and others are limiting service. Emergency rooms in several states are experiencing increased traffic because of doctor walkouts resulting in patients who can’t find doctors to deliver babies or perform high-risk procedures. Lawmakers in these states, and in Arkansas, Alabama, Georgia, Kentucky, New York, Ohio, Tennessee, Texas, Vermont, Washington and Wyoming as well, are considering legislative remedies to fix or ward-off “crisis” situations that could threaten access to health care.

“It’s a crisis for legislators when the (malpractice insurance) premiums start to affect health care delivery in their state,” Calvo said.

The most popular of the gamut of state and federal reform proposals is capping jury awards for “pain and suffering.” Last month, President George W. Bush endorsed a national proposal to cap such non-economic damages at $250,000. Proponents say caps lower the amount of money insurance companies could potentially pay out for a negligent doctor, and in turn would lower liability premiums.

A cap enacted under a 1976 California law is often credited for stabilizing the insurance market in the Golden State and serves as a model for many current proposals, including the federal legislation endorsed by the American Medical Association (AMA).

In testimony before a House congressional subcommittee Feb. 10, Donald Palmisano, president-elect of the AMA, said frustrations patients and doctors feel will continue unless state legislatures and Congress pass “proven medical liability reforms,” like the California law.

“Insurance companies should be able to lower their rates because they have less of a risk with the cap,” said state Rep. Joseph Baker (R-West Rutland), who is sponsoring a $250,000 cap in the Vermont House of Representatives. But opponents of caps, like Carl Carlton, spokesman for the Association of Trial Lawyers of America (ATLA), say they may not lower premiums. He calls instead for long-term reforms to the insurance industry.

“State legislators are under great pressure. Doctors are making patients fearful for access to care, but (the caps) they’re seeking won’t fix the problem,” Carlton said.

New Jersey state Sen. Joseph Vitale (D-Middlesex) also opposes caps.

“(Caps) would only serve to undermine the ability of victims of serious malpractice to gain just compensation,” said Vitale, who is sponsoring legislation that would create a fund to pay liability awards beyond $300,000.

The fund would be established with payments from health care providers, HMOs, lawyers and insurers.

The AMA has made caps a top priority and policy analysts say they’ve been successful bringing the issue to the forefront.

“Doctors have definitely put this issue on the legislative radar, but that doesn’t mean legislators have to enact what they’re asking for,” Calvo said.

Additional measures legislators are considering include shortening the statute of limitations to file a lawsuit, mandatory mediation and pre-trial screening to prevent frivolous lawsuits, better medical error reporting to prevent malpractice and more stringent doctor discipline.

“There’s no question that premiums have gone up significantly for some doctors, but the threat of the AMA that our health care system is going to be shut down is largely hyperbole,” said Jonathan Turley, a law professor at the George Washington University.

Nevertheless, policy analysts say doctors are justified in their concerns and that legislators face a difficult task.

“Let’s face it, health care is a business…If (doctors) feel like they (have to) shut their doors and move elsewhere. No wonder they’re making a lot of noise,” said Emily Cornell, an official at the National Governors Association Center for Best Practices (NGA).

Recent state actions include:

• In Kentucky, an effort to cap damages failed in the state Senate earlier this month, but Senate President David Williams (R-Burkesville) said he plans to try to cap jury awards again in 2004. Williams’ bill would have permitted voters to amend the state Constitution to allow caps.
• Florida’s Republican Gov. Jeb Bush is reviewing more than 60 recommendations for malpractice reform developed by a task force he appointed last year to examine the issue among them a $250,000 cap on non-economic damages. Legislators are gearing up to tackle the issue in the upcoming session that begins March 4. 
• In Mississippi, lawmakers have rekindled debate over caps on malpractice awards, an issue that spurred a special legislative session that lasted more than 80 days in 2002. Lawmakers then approved a $500,000 cap that went into effect Jan. 1, but a recent bill passed by the Senate would lower the cap to ,000.
• New Jersey lawmakers, pressured by large-scale doctor walkouts, are working overtime to pacify doctor demands for a $250,000 cap and reach agreement on malpractice reforms. In addition to a slew of legislation under consideration, the state’s insurance commissioner ordered one insurer, Zurich America, to rollback 2003 rates that had increased 108 percent. 
• In West Virginia, legislators are hotly debating a Senate bill that would help offset the cost of high insurance premiums for doctors. In January, Gov. Bob Wise (D) proposed using $20 million in tobacco settlement money to offset the premiums.
• And in Wyoming, Gov. Dave Fruedenthal (D) says he will appoint a nine-member committee to address health care issues, including malpractice concerns. Only two companies sell liability insurance in the state.