HMA pushes for medical tort reform

By Greg Wiles

Hawai’i’s largest doctor organization is making an 11th-hour push to get medical liability laws changed this legislative session, arguing that so-called medical tort reform would help reduce malpractice claims and insurance premiums and attract more physicians to the state.

The Hawaii Medical Association this week brought in an expert from Texas and yesterday sponsored a forum on the state’s doctor shortage in an effort to draw attention to bills that would limit the amount of damages that could be paid for such malpractice items as pain and suffering and other “noneconomic” claims.

“We feel the need for action is urgent,” HMA executive director Paula Arcena said. “We’ve got a serious physician shortage.”

To support its case, the HMA flew in Donald “Rocky” Wilcox, Texas Medical Association general counsel. In Texas, he said, many doctors saw malpractice premiums decline and the number of new physicians jumped after that state in 2003 enacted a $250,000 cap on noneconomic damages in physician malpractice lawsuits, along with other changes.

Wilcox yesterday said some of the changes were prompted by a doctor shortage in parts of the state because of skyrocketing malpractice insurance premiums. He said Texas experienced losses in the number of obstetricians and orthopedic surgeons during the two years leading up to the passage of legislation, years when the state’s population was growing.

“It was a real crisis,” Wilcox said in an interview. He said prior to the changes about one-fifth to one-quarter of physicians in the state were the subject of professional liability lawsuits each year. That number is now around 9 percent.

Other gains since the legislation was signed into law included a net gain of 186 obstetricians and 156 orthopedic surgeons.

“We’ve had so many doctors applying for a license the state board can’t handle it,” Wilcox said.

The HMA has seized upon numbers like those to support legislation here that would restrict noneconomic damages to $250,000 in all but the most severe malpractice cases, in which case the cap would be $3 million. It is not seeking a cap on economic damages, which is compensation for past and future medical expenses, living expenses and lost income.

The HMA also notes some of Hawai’i’s rural areas are in dire need of physicians, while there is a shortage of specialists. Arcena said there are only two orthopedic surgeons on call at night for most of the week in Honolulu. HMA said malpractice insurance premiums increased 90 percent between the 2001-2002 policy year and the 2005-2006 policy year for high-risk specialists.

The average annual premium for a neurosurgeon was $86,724, versus $44,170 five years earlier. American Medical Association research shows that caps on noneconomic damages are linked to malpractice premium reductions of at least 17 percent, she said.

“We want to reverse this trend of losing our physicians,” Arcena said. “It addresses a big expense item.”

She is hoping to get the House Judiciary Committee to hear tort reform bills so that a deadline can be met for further legislative action. Efforts to get similar action in the Senate have died. The state attorney general and the state insurance commissioner, along with many physicians, have come out in favor of the bills.

Efforts to limit how much victims have received in malpractice cases have been opposed by trial attorneys, who argue that proponents of the bills haven’t been able to show how many doctors are leaving the state or why they are leaving.

Bob Toyofuku of the Consumer Lawyers of Hawaii said his own examination of physician licensing records shows the number is increasing in the state.

“We have seen an increase in physicians every year for the last 10 years,” Toyofuku said, noting that lowering malpractice premiums won’t necessarily lead to an increase in physicians serving rural areas since a decision to live in such places is more of a lifestyle choice than an economic one, he said.

Toyofuku questioned whether the number of Texas doctors has increased dramatically based on articles and statistics he’s reviewed. He noted insurance companies have declined to say malpractice premiums will decline if damages are capped. He said 152 counties in Texas are without an ob-gyn, the same number as before the Texas legislation.
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