Archive for Sunday, January 26, 2003

Malpractice standoff raises costs

January 26, 2003

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President Bush calls it a lottery for rich lawyers. Democrats call it justice for people made sick by bad medicine.

Here we are again, in the middle of another cycle of medical malpractice finger-pointing. Funny, how it seems to track the highs and lows of the stock market. Money, money, money. It always comes down to that.

The docs and their insurance companies blame aggressive trial lawyers who sue over any little thing, which causes more payouts and higher malpractice insurance premiums, which in turn, cause good doctors to leave high-risk practices, such as obstetrics or neurosurgery. Plus, medical insurance costs rise for everybody as hospitals scramble to offset malpractice payments.

The lawyers blame lax regulation of bad doctors given pass after pass despite making the same mistakes over and over. The lawyers also blame the insurers' bad business practices during the 1990s, when insurers took out hundreds of millions of dollars from accounts created in the 1980s (during the last "crisis") that were meant to pay off mega-awards that never materialized. So insurers overzealously invested the money that should have been kept for a rainy day.

When the market took a dive in 2000 and small insurers riding the high tide of investments crashed and burned, fewer companies were left to pay off claims. This forced insurance premiums to rise for all docs.

So who's right?

Both sides are, and that's what's so darn irritating about this tit-for-tat political dance in which neither side is willing to concede to the other that there's room for improvement. How can they? Bush and his Republicans are beholden to the doctors and insurance executives who paid big bucks to get them elected. Democrats' biggest financial backers are the trial lawyers who claim to fight "for the people" so long as there are deep pockets at the other end to recover damages.

Most people don't want to have their rights to sue for cause taken away. Yet the answer isn't to attack rights, it's to seek a fair system.

It doesn't take a brain surgeon to know what should happen. First, we must punish the bad docs who continue to make the same mistakes and yank their medical licenses. At the same time, government must regulate the greedy business practices of insurers so that they don't treat reserves as profits, make bad investments and then turn around and try to recoup losses from the rest of us. Finally, curtail frivolous lawsuits without trivializing the suffering of those who have been unnecessarily hurt, and that means some kind of cap on awards.

Bush wants a national cap of $250,000 on awards for patients' pain and suffering caused by bad medical decisions, regardless of the type of screw-up a doctor, hospital or other health professional might have caused. He's off the mark. It should be a graduated system that considers the severity of mistake, a medical professional's history of wrongdoing, and how a person's quality of life will be affected.

Do you think your wife or mother should get only $250,000 if, say, both her healthy breasts are removed because a hospital messes up the records and gives her someone else's diagnosis? What about a child who becomes brain damaged by a doctor who has caused the same damage in other children?

A cap of $5 million would be fair on top of compensation for any economic losses and the need for life-long medical care. Bush would argue that $5 million would become the floor and not the ceiling for such awards. Let's test it and see.

Without reasonable award limits and stepped-up regulation of the insurance industry, plus real consequences for bad docs, the malpractice costs of doctors and hospitals will continue to escalate. Good doctors will go to states with cheaper rates, as is happening in Florida. This puts everyone at risk of poor care.

When you're dealing with people's lives, it's not the luck of the lottery that should guide public policy, though. Neither should bad medicine be excused by blaming lawyers.

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