Lawmakers consider medical malpractice lawsuit cap

Marylou Doehrman

The question from our recent health care street beat piece that garnered the most passionate response was the one that addressed malpractice suits. President George Bush, in his most recent State of the Union address, said, "Everybody pays more for health care because of excessive litigation." Truth, or consequences of a much bigger issue?

Malpractice suits are taking the fall for soaring insurance rates. Some people are just plain sue-happy, and others sue because they are not happy with the results of their lifestyle choices. Of course, there are legitimate lawsuits. When a woman surgically loses both breasts because a pathologist confused her results with another patient, a lawsuit is warranted. But there is nothing black and white about the health care dilemma, and malpractice issues are as gray as a Midwest winter sky.

Michael Schrader, Memorial Hospital's executive director, talked about the status of physicians in today's world. "In the past, physicians were gods; and, in the last 15 to 20 years, that physician status has diminished," said Schrader. "We now seek second and third opinions and debate with our doctors.

"We have taken physicians from omnipotence to a level where we live, yet we have zero tolerance for error, and malpractice suits reflect expectations that there will never be errors made," added Schrader. "Capping lawsuits is a temporary measure, and it won't stop lawsuits; however, we must somehow bring it all back to a fair and equitable manner."

Susan McMaster, doctor of osteopathic medicine, agrees with Schrader that capping lawsuits won't stop them. Dr. McMaster believes that caps will just generate specialized law firms. "Caps may decrease the amount of people going after big bucks, but it won't change anything; people will continue to sue," said McMaster. She has practiced medicine for 14 years without a lawsuit, despite being told in medical school that she should "plan on being sued." McMaster does everything she can to avoid a lawsuit, and she knows a bit about law - there are three attorneys in her family. Prevention is key to a lawsuit free existence.

Osteopathic medicine preaches preventive medicine, and McMaster's malpractice rates have actually decreased because she has never been sued, but she is consistent about taking legal preventive measures that help ensure a "suit free" career. McMaster is a member of the Denver Medical Society (insurance companies reward doctors for membership in organizations) and attends ongoing risk management and continuing education courses, many of them provided by her insurance carrier. "I do think that people blame malpractice suits for the rising costs of health care insurance," said McMaster, "but insurance and doctors are a business like everything else."

Medical care is not a panacea or a cure all, she added. "Patients think we can make them healthy no matter what. Patients and doctors must accept individual responsibility. Doctors need to listen, talk to their patients and be better communicators." She added, "Doctors need to explain that we will give it 100 percent, but we can't always guarantee a full recovery."

Insurance companies are trying to be proactive by offering communication, education and risk management seminars and support to doctors and nurses. "If I even think that there is a problem with a patient, I immediately inform my insurance carrier, and they talk me through the situation," said McMaster. "The problem is documented just in case a lawsuit is initiated in the future." And communication with the insurance company does not affect rates.

However, communication between a doctor and a patient could affect the outcome of a lawsuit, unless House Bill 1232 passes in the Colorado legislature. Simply speaking, the bill states that conversations between doctor and patient, relatives or representatives of the patient are inadmissible as evidence of an admission of liability in the event any civil action or arbitration takes place because of an unanticipated outcome of medical care.

COPIC Insurance Company insures 80 percent of Colorado doctors, and George Dikeou, attorney and COPIC executive vice president, believes that HB 1232 will allow for more open and improved communication between doctors and patients. "Doctors are afraid to talk to people because they are scared of being sued," said Dikeou. For eight years, Dikeou was in- house counsel for University of Colorado Health Sciences Center. A lawsuit never ensued, because faculty members trained students and residents to effectively communicate. Dikeou said that COPIC devotes more dollars to risk management than any other insurance company. From pilot programs that address communication issues to employing full-time physicians and nurses as mentors, advocates and educators to championing legislation, the insurance company is working for - not against - the doctor.

Another current bill that is before the Senate right now is House Bill 1007. To understand the bill, one needs its history. Colorado currently caps medical malpractice suits - all because of tort reform which included caps, that was passed in 1988. Prior to that reform, an OB/GYN paid annual premiums of $61,904; adjusting for today, that same doctor would pay a yearly premium of $98,645. COPIC's rate - filed with the insurance commissioner for this year - is $34,867, and that does not include premium credits, so the doctor pays an average of $29,429. The cap on medical malpractice suits in Colorado is $250,000 for non-economic damages, which includes pain and suffering and emotional stress. Colorado has a million dollar overall cap; however, the law states that a judge has discretion to go above the cap. "For example," said Dikeou, "if John Elway's throwing arm had been impaired in some way by a physician, a million dollars would not have covered his wage loss alone." The judge can up the ante.

In December 2001, the Colorado Supreme Court added a brand new category with regard to malpractice suits called disfigurement and dismemberment - the only state in the country to include that category. It skewed the initial tort reform. Malpractice rates once again jumped, some as high as 27 percent. Hardest hit were the neurosurgeons whose rates currently average between $53,000 and $71,000. House Bill 1007 merely applies the same kinds of non- economic loss (the intangibles) caps to the new category - disfigurement, dismemberment or physical impairment. As it stands now, there is no cap for the recently added category. We just want to bring the original plan (tort reform) back to the forefront, said Dikeou.

COPIC settled 121 medical malpractice suits in the last year. Settlements averaged $215,000 and ranged from $7000 to a little over a million dollars.

Physicians elsewhere in the country are feeling the crunch of exorbitant malpractice insurance costs. The docs are fighting back by refusing to work or perform certain procedures. Doctors aren't perfect - and the system is far from it. President Bush is encouraging caps as one way to reinvent the system. In that same State of the Union address, Bush discussed malpractice suits. "To improve our health care system, we must address one of the prime causes of higher costs - the constant threat that physicians and hospitals will be unfairly sued. No one has ever been healed by a frivolous lawsuit."

The jury is still out with regard to malpractice caps. However, Dr. McMaster said that Colorado, with its caps, is a draw for doctors and a checks and balances process for the system. "Doctors want to come here, and they disappear if they're not towing the line."

Meanwhile, veterinarians may soon also be running with their tails between their legs, if House Bill 1260 passes. In a nutshell, the bill permits an owner of an injured companion dog or cat, under certain circumstances, to recover damages for loss of companionship at a $100,000 cap. Critics say veterinary costs will also climb.

Copyright 2003 Dolan Media Newswires
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