The malpractice issue: What's coming next

September 12, 2004|by BOB MAGINNIS

As Washington County's doctors face a 41 percent increase in their malpractice insurance premiums, they can take a bit of comfort in one thing - one of the key players in the debate is a member of local delegation to the Maryland General Assembly.

And a representative of Maryland's trial lawyers said that group is willing to work with doctors, though maybe not in the way the physicians would like.

Del. John Donoghue, D-Washington, is a member of the House Health and Government Operations Committee and chair of a subcommittee on health facilities. He is also a member of a joint committee on emergency medical response.

Donoghue said this week that the House is likely to revive the bill it passed last year, on a 136-1 vote, only to see it die in the Senate Judicial Proceedings Committee on a 5-5 tie.


But he said other parts of the problem - tort reform, quality of care, insurance issues and hospital issues - will be addressed through separate bills.

"There's a balance we're trying to find between the needs of the patient who's injured and healthcare providers," he said.

Last year's bill had several components, Donoghue said, including mandatory mediation of malpractice cases.

"This has worked very well at Johns Hopkins," Donoghue said.

The bill also eliminated the "double cap" in wrongful death cases, in which both the estate of the deceased and the surviving family are allowed to collect up to $600,000.

The bill would also limit how past medical expenses already paid by insurance companies would be figured into damage awards.

The idea of structured settlement, in which the injured party gets a payout over years as opposed to a lump sum, was also discussed.

"Some things were yanked out, issues that both sides agreed to disagree on and come back another day to if they were left out of the bill," he said.

Other items looked at, he said, included the disparity in premiums charged between certain specialties, such as dermatology and obstetrics, and the possibility of tax credits for doctors whose premiums go up by more than 20 percent.

Donoghue agreed with my assessment that the debate has become personal, in some cases. But he said that because doctors are lobbying so hard for change, "the dynamic has changed" and pressure for a solution of some sort has drastically increased.

Kevin McCarthy, a representative of the Maryland Trial Lawyers Association, said that his group has "always been willing to talk and work as best as we can."

McCarthy agreed that malpractice insurance premiums are too high, noting that his own malpractice insurance doubled this year, even though he hasn't had a claim in 35 years of legal practice.

But McCarthy said the trial lawyers don't feel it's their place to suggest legislation to resolve the insurance problem. He added, however, that the compression bill introduced last session has merit.

Essentially, he said, it would add a little to the premiums of those who pay relatively low ones now and provide lots of relief to those who pay more.

Maryland MedChi has opposed that, McCarthy said, in the belief that other companies would come and undercut rates for those now at the bottom of the scale. That's unlikely, McCarthy said.

Mandatory mediation is a good idea and is done now in some counties, notably Prince George's, he said.

Not so good, he said, is the so-called structured-settlement proposal, which he said would give the plaintiff money back if the patient died before all the cash was paid.

Asked about local physician John Newby's statement that some attorneys file 10 cases in hopes of "winning the lottery," McCarthy said the average case he files costs $50,000 to mount.

"Not many lawyers are going to spend $450,000 in hopes of winning one case," he said.

He did agree with Newby that patients sometimes want to sue over bad outcomes, even if there was no malpractice. McCarthy said for every case he files, there are 99 in which he has to tell the patient that he's sorry, but that there's no action that can be taken.

So what can doctors do?

"It's about time they looked to themselves," he said.

"Rates go up because there are claims filed because some doctors are doing things inappropriately," he said.

Doctors have to do a better job of policing their own ranks and sanctioning those who commit malpractice, he said.

McCarthy said that in one case he handled, a man diagnosed with gastrointestinal bleeding was left in an emergency room hallway for five hours because there was no established procedure for getting the blood from the blood bank to where it was needed.

"After that, they changed the procedure. Without that lawsuit, this never would have been changed," he said.

McCarthy said he does not see physicians as enemies, noting that his best friend is a doctor. He said he even gives lectures, at no cost, to physicians' groups on how to avoid malpractice.

That's a talk I'd like to hear sometime. Unless there's a discussion that begins with all sides agreeing that there's a need to protect patients without bankrupting most of the doctors, we're all going to lose.

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