Malpractice caps might not control insurance premiums

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Opinion

THE ISSUE
The Legislature has rejected a proposal to limit noneconomic damages for medical malpractice to $500,000.

DENIED a hearing in last year’s Legislature, doctors made some headway in their efforts to put a lid on medical malpractice awards, which have caused some insurance premiums to soar. A proposal to limit non-economic damages in a malpractice lawsuit to $500,000 died again in this year’s session, and such a measure’s potential success at bringing insurance premiums under control remains questionable.

Some of the concerns might be unfounded. Nationally, malpractice payments have declined in recent years and the value of payments has been stable for the past quarter-century, according to a recent report by Ralph Nader’s Public Citizen. Fewer than 6 percent of doctors have been responsible for 57.8 percent of those payments since 1991.

Still, insurance premiums have risen by 58 percent since 2001 for doctors most vulnerable to malpractice lawsuits, such as general, neuro- and orthopedic surgeons and obstetrician-gynecologists. They now average $52,604, according to the Medical Insurance Exchange of California, Hawaii’s largest malpractice carrier.

President Bush and Gov. Linda Lingle have cited California’s $250,000 economic cap as an effective tool in controlling insurance costs. However, California’s malpractice insurance premiums rose six-fold in the 13 years following the cap’s enactment, and premiums finally were brought under control after voters required state approval of premium increases and other insurance regulation.

Hawaii’s $375,000 cap on awards for physical pain and suffering has been largely ignored. Plaintiffs’ attorneys instead ask juries to award larger amounts as compensation for mental anguish, disfigurement and loss of enjoyment of life.

The Public Citizen report asserts that state medical boards could play an important role in addressing the problem by ensuring that doctors meet high standards of competency and care. The report cites the $5.6 million in damages awarded by a Big Island jury last year to the family of a man who died after a surgeon implanted the shaft of a screwdriver in his spine. The surgeon had been credentialed to practice medicine in Hawaii after being suspended from practice in Oklahoma and Texas.

Lingle proposed four years ago that the Hawaii Medical Claims Conciliation Panel, which reviews complaints and identifies meritless cases, be given power to prevent frivolous lawsuits from being filed. Such authority could play an important role in controlling malpractice claims.

State medical boards also should be more active in holding physicians responsible for repeated acts of negligence. The Public Citizen report points out that only one-third of doctors who made 10 or more malpractice payments were disciplined by their state boards.

Doctors find it easy to blame medical-malpratice lawyers for skyrocketing insurance premium rates, but it isn’t that simple. Failure to adequately oversee medical practices, regulate insurance rates and discipline negligent doctors is equally responsible for the health system’s vulnerability.
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