Malpractice awards may push out physicians

By Zach Lowe
http://www.stamfordadvocate.com

STAMFORD – A Stamford jury’s decision to award a record $38.5 million to the parents of a boy born with cerebral palsy has reignited debates over medical malpractice rates, insurance company tactics and the cause of cerebral palsy.

Obstetricians statewide were shocked by the verdict against a Harvard-trained obstetrician from Stamford who, in the jury’s view, took too long to decide to do an emergency Cesarean section.

Physicians worry the case could push their already high premiums up further and force quality doctors out of state.

Other experts said those fears are exaggerated and criticized calls for specialized health courts that would remove medical malpractice cases from civilian juries.

“The physicians have been shocked by the sheer magnitude” of the verdict, said Matthew Katz, executive director of the Connecticut State Medical Society. “You just don’t see numbers like that.”

Connecticut is one of about a half-dozen designated “crisis states” in which premiums for obstetricians have skyrocketed since 2000, according to the American Medical Association.

The average state obstetrician pays $170,000 a year for medical malpractice insurance; in 2000, the same state doctor paid about $63,000, according to data from the AMA.

Obstetricians have among the highest premiums of any physicians, and about 60 percent of all their malpractice payouts are linked to babies born with cerebral palsy, several studies have found.

The state medical society, a lobbying group for physicians, has called for limits on damages for pain and suffering in malpractice cases. Connecticut is among 21 states with no limits on so-called noneconomic damages, according to the AMA.

The jury awarded the Oram family of New York, formerly of Norwalk, $7.5 million in pain and suffering damages in the recent case, in which the umbilical cord cut off oxygen flow to the baby’s brain. The bulk of the award, $30 million, went toward paying for the boy’s medical care over an estimated 50-year life span, attorneys said.

No state has caps on such economic damages, the AMA said.

Insurance companies have taken note of the record verdict, and physicians are worried the companies will raise rates if more juries decide on similar rewards, according to a dozen experts and doctors around the state.

“When something is this high, you have a concern that it will have a ripple effect on the market,” Katz said.

That could drive obstetricians out of state, doctors said.

Leonard Ferrucci, a Stamford obstetrician and chairman of the legislative committee of the Fairfield County Medical Association, found that 15 percent of the state’s obstetricians moved out from 2002 to 2004, when premiums jumped more than $50,000.

“The insurance companies are looking into this,” Ferrucci said. “When you see awards this large, it has to have an effect on juries.”

Connecticut’s two main medical malpractice insurance providers, the Connecticut Medical Insurance Company and ProMutual Group, declined to comment.

One verdict is unlikely to have that type of impact, said Tom Baker, head of the Insurance Law Center at the University of Connecticut School of Law and author of the 2005 book, “The Medical Malpractice Myth.”

The doctor in the case, Corinne de Cholnoky, is unlikely to pay anything because her insurance company, GE Medical Protective, rejected the plaintiff’s offer to settle the case for de Cholnoky’s $2 million insurance policy, according to Baker and attorneys involved in the case.

“They misjudged their legal responsibility,” said Angelo Ziotas, an attorney for Silver, Golub & Teitell, the Stamford firm that represented the baby’s family.

De Cholnoky likely will initiate a court proceeding against the insurance company, saying it should have taken the plaintiff’s offer, Baker said.

De Cholnoky’s attorney, James Rosenblum, said he could not comment on the insurance company’s strategy.

The insurance company and the family then will come to a confidential settlement for an amount ranging from $2 million to the $38.5 million verdict, Baker said.

“The doctors are almost like a prop in the debate between insurance companies and trial lawyers,” he said.

Still, a series of huge verdicts in one state can drive premiums up, said Baker and Michelle Mello, a professor at the Harvard School of Public Health, who specializes in medical malpractice research.

Several research reports have shown that premiums rise and fall at different rates in different states.

Some physicians and independent experts said they believe insurance costs would go down if states began using health courts, in which expert arbiters decide malpractice cases outside the court system.

No state has a true health court system, Mello said.

The state medical society supports health courts after years of failed lobbying for caps on awards.

Baker opposes health courts, saying civilian juries do a careful job evaluating cases.

But evaluating cases involving cerebral palsy is difficult, Mello said.

Scientists have begun attacking the idea that cerebral palsy is caused mostly by an obstetrician’s failure to quickly remove the umbilical cord from around a baby’s neck, experts said.

“In most cases of cerebral palsy, the cause cannot be determined,” four doctors wrote in a 2005 issue of the Journal of the American Medical Association.

Several experts have concluded that cerebral palsy may be linked to an infection in the mother’s placenta that deprives the baby of oxygen in the womb, Mello and other experts said.

“There’s so much that still needs to be known,” said Judith Ham, president and chief executive officer of Cerebral Palsy of Colorado.

Rosenblum made that argument in the recent Stamford case, but the jury apparently didn’t buy it.
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