Tort Reform Bill Dies

By Leland Kim

HAWAII STATE CAPITOL (KHNL) — Judiciary Committee Chair Tommy Waters (D-Lanikai, Waimanalo, Island of Kaula) held a controversial medical liability or tort reform bill in his hands Thursday.

“It’s not doctors versus lawyers,” he said. “I know the proponents of the bill want to frame it that way. For me, it’s about victims’ rights.”

It’s been a heated issue: how to keep doctors from leaving Hawaii and attract new ones to our state. Wednesday, KHNL News 8 devoted the majority of our news coverage on Hawaii’s health care crisis.

Thursday that issue was back in the spotlight at the state Capitol, with a deadline for Waters to hear that tort reform bill. He did not and it died Thursday night.

It is a major setback for the medical community, but proponents for medical liability reform say, it’s not over just yet. And opponents say they’re just trying to protect patients’ rights.

Whatever happens with this issue, it will definitely impact the people of Hawaii one way or another.

Medical liability reform has become a hot button issue. At Wednesday night’s KHNL and K-5’s health care forum, things got heated at times.

“Why would a physician go off insurance?” asked Dr. Josh Green (D-Island of Hawaii), a Hawaii state representative and an emergency room physician on the Big Island. “I mean, why would they do that? Because it’s become too hard to practice medicine.”

Things were much calmer Thursday at the state Capitol.

But the medical liability reform bill died, because the judiciary committee chair would not hear it.

“I think it’s inappropriate for the Hawaii Medical Association to determine what is fair especially when what we’re talking about is when a health care professional has caused serious injury or death in some cases,” said Waters, the judiciary committee chair.

He said he let it die because it would have taken power away from victims.

The bill would have capped non-economic damages at $500,000 for high risk specialties, and it would have put a limit on catastrophic damages at $3 million.

“When you’re seriously hurt, the doctor amputates the wrong leg, and then he has to amputate the right leg,” said Waters. “Now you’re without two legs. Should a doctor be able to say how much you should be compensated? I don’t think so.”

But Dr. Green said potential awards could be much higher than the cap.

“Believe me, there will be giant decisions still,” he said. “Even with a $3 million cap, when you include economic damages, and the definitions are very important, there will be $10-, $15-million dollar awards.”

He said something has to be done to keep doctors from leaving Hawaii. With a dozen or so attorneys in the legislature, including Waters, Dr. Green said he faces an uphill battle.

“I’m the only doc, so I’m kind of fighting it alone but I do believe we should have a compromise to get more doctors to the island,” he said. “It does matter to them. No matter what’s said in hearings, it does matter to them. Docs will come, especially to the rural areas. That’s what matters to me.”

Dr. Green said he hoped the bill would have been given a chance.

“That’s the point of having hearings to actually have extra inputs and new ideas,” he said. “So I say have hearings to get the new ideas. Don’t kill things prematurely.”

And he believes having some sort of a cap on medical malpractice insurance would help bring doctors to Hawaii.

“And it may not be the caps you see on the mainland but something to show the doctors that this is the place to be, this is the place to stay,” said Dr. Green.

Two other bills aimed to keep doctors in Hawaii are still alive, but they mainly address loan repayment and other incentives to keep new doctors in our state.

Dr. Green said he plans to work to find common ground with committee chairs, and also plans to add tort reform language to a senate bill when it comes his way.

But a Republican senator is not as optimistic. Senator Fred Hemmings (R-Lanikai, Waimanalo, Hawaii Kai) said bipartisan politics harms the process, and prevents bills like the tort reform bill from passing.

In the end, he said, it harms the people of Hawaii.

“Lots could be done, but the real question is will it be done and the answer is no,” he said. “This legislature, not the legislators in general, but the majority party, refuse to provide meaningful medical insurance reform and what’s happening is people of Hawaii’s welfare is being impaired because doctors are leaving the profession. It is a serious problem.”

Sen. Hemmings said many misconceptions exist about the need for insurance.

“Well, medical malpractice insurance is a burden on society because some legislators think it’s a redistribution of wealth from rich doctors and insurance companies to poor people,” he said. “It’s really a redistribution of wealth from consumers and doctors to greedy lawyers because a good portion of that judgment goes to lawyers, and it’s really sad.”

He said the effects of no tort reform are already evident.

“It’s gotten beyond the point of the economic hardship it provides the medical community, said Sen. Hemmings. “It’s actually gotten to a point where it’s hurting the welfare of the people of Hawaii because doctors are leaving, professions leaving, practices leaving. You can’t get a baby delivered on Moloka’i.”

Sen. Hemmings said no mechanism is in place to protect Hawaii doctors from frivolous lawsuits.

“Well here in America, if you have a lawsuit filed against you, you’ll have to spend hundreds of thousands of dollars defending yourself,” he said. “So what happens is, insurance companies settle on behalf of their clients — doctors — and that money is collected for negligible suits at best. I call it tort extortion.”

Sen. Hemmings calls it a “political problem” and said the Democratic Party wants to maintain the status quo, and keep trial lawyers as a key lobbying group.

“Part of my job is being frustrated,” he said. “Who it should really frustrated is the people of Hawaii that are living in an economic environment that could be a lot better and it’s not because of poor politics at the state legislature on the part of the majority party.”
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