‘A Step In The Right Direction’ President Bush Offers Proposals To Rein In Malpractice Awards Nationally

As Massachusetts and other states struggle with an exodus of doctors and specialists due to soaring malpractice insurance costs, President Bush has stepped into the fray, offering a package of tort reforms that would cap jury awards and help lower premiums. Bush publicly unveiled his proposals in Scranton, Pa., where he said 60{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} of vascular surgeons have left the area, orthopedic surgeons have stopped taking trauma calls, the few remaining ob/gyns in the area are refusing to take new patients, and hospitals cannot afford to lure talented doctors. It sounds similar to the situation in many other states, including Massa-chusetts, where insurance premiums in some areas, such as ob/gyn, radiology, and surgery, have sharply risen and in some cases doubled over the past year or two. Democratic leaders — including North Carolina Sen. John Edwards, a lawyer who plans to seek the presidency in 2004 and who made millions trying personal injury lawsuits before his election to Congress — have criticized Bush’s proposals as being unfair to patients, but medical organizations have welcomed the discussion, at least cautiously. Still, they say that liability insurance is only a piece, albeit a significant one, of larger problems plaguing America’s health care system, and tackling only one piece won’t be sufficient. Realistic Awards Bush said he wants to secure the ability of injured patients to get quick, unlimited compensation for their “economic losses,” including the loss of ability to provide unpaid services, such as care for children and parents. At the same time, however, he proposes to cap damages for non-economic damages to $250,000 and reserve punitive damages for cases where they are justified, lso limiting them to “reasonable amounts.” He also proposed to provide for payments of judgments over time rather than in a single lump sum, to ensure that appropriate payments are there when patients need them; to ensure that old cases cannot be brought years after an event; to reduce the amount that doctors must pay if a plaintiff has received other payments from an insurer to compensate for a loss; and to ensure that defendants pay judgments only in proportion to their fault. Bush also called for improvements in health care quality and patient safety as part of any litigation reform package. Currently, he maintained, information-sharing efforts between health organizations concerning quality problems and medical errors are blocked by fear of litigation. “I applaud the president’s efforts in this,” said Dr. Gordon Josephson, chief operating officer of Baystate Medical Practices at Baystate Health System. However, he continued, “it isn’t necessarily as simplistic as just capping these awards and things will get all better. But it’s certainly a step in the right direction, allowing people in need who have been injured to get appropriate compensation, but not something so outlandish as to distort the whole system.” It’s a plea doctors have been making for some time, as jury awards have led to an explosion in premium rates. In Massachusetts, ob/gyns are in many cases paying more than $100,000 a year. In Pennsylvania and Ohio, respectively, doctors in that field have seen premiums rise, on average, by 125{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} and 145{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} since 1998. In addition, according to White House reports, specialty doctors in Pennsylvania, Florida, and Arkansas have seen increased premiums of 40{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5}, 75{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5}, and 112{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5}, respectively, since last year alone. An issue that has threatened the viability of many ob/gyns and surgeons in Massachusetts has clearly been manifested as a national problem. One Problem among Many It’s an issue, however, that cannot be solved only through tort reform, Josephson and other doctors maintain. “Malpractice rates have been climbing, but they’re climbing in the face of decreased reimbursements for physicians, while other costs keep going up,” said Dr. Gary Reiter, medical director of Holyoke Hospital. He noted that the average physician income in Massachusetts dropped 20{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} between 1996 and 2000, while Medicare continues to saddle the industry with annual 5{06cf2b9696b159f874511d23dbc893eb1ac83014175ed30550cfff22781411e5} decreases in payment to doctors. In addition, he said, the number of patients on Medicaid is being cut back, leaving more people without the means to pay. “The whole medical system is being squeezed.” Some Democratic lawmakers maintain that tort reform should not be on the table in dealing with national health care woes; they say the issue isn’t large jury awards, but the insurance industry hiking premiums beyond many doctors’ reach. “These proposed changes in law would deprive seriously injured patients of fair compensation and do nothing to guarantee that doctors could obtain malpractice insurance at a fair price,” read a letter sent to Bush in January by Massachusetts Sen. Edward Kennedy and three other Democratic senators. “At every stage of the legal process, the administration’s plan systematically rewrites the rules of civil law to tip the balance against patients.” But patients are the ones most affected when doctors are chased out of states by skyrocketing premiums, many physicians maintain. The situation with ob/gyns in Massachusetts is only one manifestation of that. “We’ve seen some obstetricians leaving communities in some cases, while others are markedly restructuring their practices” to focus on gynecology only, Josephson said. “The concern the public should have is one of access. As physicians leave the area for greener pastures, retire early, or leave the profession, the ability of people to get care is dramatically affected. That’s a major issue.” Change Needed Bush typically argues for states’ rights, but he says his support for a nationwide liability cap stems from the states’ failure to adopt limits on their own, a failure which harms the entire health care system in America and leads to greater costs across the board. “We are in a medical liability crisis because excessive and abusive litigation is driving up costs, decreasing access to quality care, threatening patient safety, and leading to a badly broken system,” White House deputy press secretary Scott McClellan said. While recognizing that the battle to reverse financial trends in health care must be waged on several fronts, Josephson characterized Bush’s proposal as a positive initial development. “From a business point of view, these premiums are dramatically increasing at a time when reimbursement for care is pretty flat or, in some cases, declining,” he said. “So it creates a tremendous difficulty for physicians who want to practice in the community and pay their bills and be paid a fair, reasonable amount for their work.” Few in the industry would deny that many aspects of health care, not just liability, are indeed broken. Citing a December report in the New England Journal of Medicine on homeostasis in health care, Reiter said the industry can’t continue to adjust to financial hurdles indefinitely. “In the last 10 years, there are less nurses, so nurses have to see more patients, but they’re maxed out. Payments to doctors have gone down while costs have gone up, so doctors have to see more patients, but we’re running out of the ability to do that. Hospital systems are cutting costs to stay solvent, but they’re running out of the ability to do that,” Reiter said. “We need a larger strategy from the federal government to be able to continue to provide what is really the best health care in the world.”

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