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General Assembly | Malpractice Doctors Say a Lower Cap on Payments to Injured Patients Would Boost Health Care; Lawyers See Things Differently

Posted on: Tuesday, 11 January 2005, 09:00 CST

BY KATRICE HARDY

THE VIRGINIAN-PILOT

As Virginia kicks off its next lawmaking session this week , one of the most controversial issues that elected officials will debate involves the rising malpractice insurance expenses that physicians pay.

The issue, which has rumbled through nearly every state in the nation and also is being scrutinized by Congress and President Bush, pits wealthy lawyers against wealthy doctors.

But in the end, its really about average Americans.

One of the central questions in the debate is whether patients should be further restricted on the amount of money they could receive to compensate for pain and suffering in legal cases in which doctors are found to have committed malpractice .

Doctors think the answer is yes and that caps lower their costs. Across the nation, doctors are pressing elected leaders to place such caps in state and federal laws.

Trial lawyers argue that limiting jury awards will not trigger lower premiums.

If anything, Virginia needs to raise the amount of money that victims can receive to keep up with inflation, said Jack Harris, executive director of the Virginia Trial Lawyers Association.

Currently, Virginia limits total medical malpractice awards to about $1.8 million, and the cap is scheduled to rise to $2 million by 2008.

Harris and others think the solution is not caps but insurance reform. One option might be to allow doctors to buy insurance through the state, Harris said.

Both sides are scrambling to ink their solutions into bills for the upcoming General Assembly session.

Last year, we got our feet wet, said Ann Hughes, director of legislative affairs for T he Medical Society of Virginia. But this year, weve done a lot of deep thinking and held a number of meetings and roundtable discussions.

Lawmakers need to act soon on the rising premiums, said Del. Robert F. McDonnell, who is running for attorney general and leads the House of Delegates Courts of Justice committee.

In some parts of the state, there are few obstetricians and gynecologists. Ob-gyns, neurologists and anesthesiologists are charged among the highest amounts for malpractice insurance.

Theres a call to action right now, said McDonnell, R-Virginia Beach. The biggest challenge is to answer which of the proposed reforms will actually lead to lower malpractice rates.

The legislation

Bill proposals being reviewed by T he Medical Society of Virginia include those that would require a medical expert to attest to the legitimacy of the case before it is filed in court, would allow doctors to provide information about a patients overall medical history when the patient is suing another physician and would more strictly define medical malpractice to weed out cases that do not meet the legal threshold.

The medical society also is proposing a bill that would require the Virginia Board of Medicine to investigate a doctor who has had three judg ments or settlements against him within 10 years.

Another bill, HB 1794, would allow a doctor to express sympathy to a patient or their family without fear that their emotions will be used against them in court.

Harris said his organization may be willing to support the medical society on some initiatives, particularly those that bolster the quality of care for patients.

But he and many other trial lawyers draw the line at any reduction of the cap.

Del. Harry R. Purkey, R-Virginia Beach, is sponsoring HB 1693 and HB 1694, which would cap pain and suffering damage awards at $250,000 and restrict the amount of money attorneys could collect in successful malpractice cases.

Supporters say there is evidence that caps work to lower doctors costs. Limits on damages, along with other changes, could produce a 40 percent savings for doctors, Dr. Richard E. Anderson, the chairman and chief executive officer of The Doctor s Company, a medical malpractice insurance firm, told a group of Virginia lawmakers and officials last September.

Still, there are some who dont buy the cap arguments.

We have a lot of people that are trying to put a quick fix to this problem, said Sen. Kenneth W. Stolle, R-Virginia Beach and chairman of the Senates Courts of Justice committee. If Purkeys bills get out of the House, they will be dead on arrival in the Senate, he said.

According to a United States General Accounting Office report presented to Congress in August 2003, theres little proof that caps make a difference in premiums.

Other factors can affect premiums, according to the report, including competition among insurers, interest rates among insurers investments, and state laws regulating the premium rate-setting process.

Stolle said there is no magic bullet to solving malpractice issues. If there were we wouldve shot it a long time ago, he said.

Stolle, who has three siblings who are attorneys and two who are ob-gyns, also wants to address some of the other economic pressures that doctors face.

Reimbursements from Medicaid and other insurance programs have remained largely stagnant while health-care costs have steepened significantly. More patients now have little or no insurance, resulting in escalating uncollected debts for many doctors.

Stolle would like to see the state continue to increase its Medicaid reimbursements for doctors. Last year, Gov. Mark R. Warner increased Medicaid payments for obstetrical care by 34 percent in August in an emergency regulation. It was the first increase in more than 10 years.

Where Virginia stands

While Virginia is not the most expensive state when it comes to malpractice coverage, the American Medical Association lists it as a problem state.

Premium costs here have soared during the past three years for a number of physician special ties .

Critics say the costs have driven some Hampton Roads doctors in particular obstetricians, gynecologists and neurologists out of practice, caused them to move to other states or forced them to limit the kinds of procedures they perform.

The scarcity of doctors causes longer waits in the doctors offices, said Dr. Alfred Abuhamad, a professor and chairman of obstetrics and gynecology at Eastern Virginia Medical School in Norfolk. Abuhamad helped form the Hampton Roads OB/GYN Society to try to lower costs of malpractice coverage. .

Were going to put women in serious risk for problems if something doesnt happen, Abuhamad said.

The issue has grown so severe that the American College of Obstetricians and Gynecologists lists Virginia as one of the worst states for doctors who handle prenatal and delivery care to practice in.

Those factors make it tough to recruit new doctors to the area, said Kenneth Krakaur, a senior vice president at Sentara Healthcare.

Dr. Jeff Hammer, a Chesapeake ob-gyn and member of Chesapeake General Hospitals authority, said many doctors still love what they do.

But in todays climate, you cant afford to have any bad outcomes that may not be of any fault of your own, Hammer said. Any suits against you, whether they are dropped or not, will make it difficult for you to afford insurance or even get it.

Hammer said he and others now practice defensive medicine for instance, more Caesarean sections.

In the 1990s, vaginal deliveries were encouraged by insurance companies because they thought they would lower health costs. But today fears of litigation have caused Hammer and other doctors to talk many of their patients into delivering through Caesarean sections.

The procedures can result in fewer birth complications, Hammer said.

There are a number of theories about the rise in C-section births, but national statistics show the increase occurring nationally and in Virginia since the mid- to late 1990s.

According to the National Center for Health Statistics , in 2002 more than 1 million of the countrys 4 million births were delivered through C-sections, a 26 percent rate increase from the year before .

Last year, in Virginia nearly 29,000 babies, or more than 28 percent of all newborns in the state, were delivered through C- sections .

Dr. Cynthia Romero, a Virginia Beach family practitioner and Medical Society of Virginia board member, said many physicians are squeezing in more patients to help offset their escalating costs.

Romero has watched her malpractice premiums go up nearly 75 percent in the last three years even though shes had no claims against her and works in an area considered low-risk legally by insurers.

We pay more even though weve done the best we can do to practice good medicine, she said.

Reach Katrice Hardy at 222-5857 or katrice.franklin@pilotonline.com

Source: Virginian - Pilot

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