Reports show medical malpractice reforms working

by Justin D. Anderson

CHARLESTON, W.Va. — Recent reports show laws passed five years ago to deal with a medical malpractice crisis have had a dramatically beneficial effect.But a legislator who’s also executive director of the West Virginia Medical Association said the state is “one Supreme Court decision away” from being thrust back into the crisis.

In 2003, there were 315 malpractice lawsuits filed in West Virginia, according to the West Virginia Medical Association. Last year, there were 174.

That’s a 45 percent decline.

Five years ago, a number of doctors left the state and others threatened to leave because they said the cost of malpractice insurance had risen to unaffordable levels.

In 2003, Gov. Bob Wise signed legislation that created the West Virginia Mutual Insurance Company, which now covers 70 percent of the state’s physicians.

In the last three years, premiums have fallen substantially.

In 2005, established family practice doctors paid $36,449 a year for malpractice insurance. Now they pay $28,066.

A general surgeon paid $82,821 a year for insurance in 2005. Now they pay $58,219.

Officials say the malpractice reforms have led to an increase in the number of doctors in the state and that in turn means better health care for West Virginians.

In 2004, there were 4,873 practicing physicians, compared to 5,513 this year.

The state Board of Medicine has already issued new licenses to 400 physicians this year and the number is expected to increase by year’s end.

“Currently, we have more physicians in West Virginia than ever and with a relatively unchanging population number in recent years, it means the ratio of physicians to people is ever so slightly higher than before,” said Bob Knittle, executive director of the board.

Evan Jenkins, executive director of the state medical association, said the 2003 reforms are directly responsible for the improvements.

That year, lawmakers followed up on a 2001 law that required a physician to sign off on every malpractice lawsuit filed to ensure it had merit.

In 2003, lawmakers lowered the cap for awards for pain and suffering caused by malpractice from $1 million to $250,000 in typical cases and $500,000 in cases involving serious injury.

Lawmakers also passed legislation that made each defendant in a malpractice suit accountable for the percentage of damage they were found to have caused.

These reforms were meant to lessen the filing of so-called frivolous malpractice lawsuits that were swamping the courts and the financial exposure doctors and insurance companies faced.

But Jenkins, a Democrat who represents Cabell County in the State Senate, said there are no guarantees.

“So far, we’ve seen very positive indicators,” Jenkins said. “But we are one Supreme Court decision away from being thrust back into the crisis. The court has yet to rule on the heart and soul of the reforms. They’ve nibbled around the edges.”

Jenkins said the main reform that is challenged most often and vigorously by trial lawyers is the pain and suffering damage cap.

Lawyers argue that the cap is not enough to compensate malpractice victims who are young and face many years of misery.

Back when the cap was $1 million, the court upheld it by a unanimous vote in 1991, Jenkins said. But nine years later, a different set of justices barely upheld the cap by a 3-2 vote.

“We are one vote away from potentially losing the cap,” Jenkins said. “This is one of the frustrations to the medical communities that the court could rule so clearly on the cap and then a decade later see a different set of justices view it differently.”

Jenkins said there are a few cases in the Supreme Court pipeline that will again test the reforms. Anything can happen, he said.

“This is a fluid process,” Jenkins said. “We are anxious for the Supreme Court to give the reforms a stamp of approval.”

Contact writer Justin D. Anderson at jus… or 304-348-4843.

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