U.S. Senate Fights Deadlock on Medical Malpractice Limit

By James Rowley

Ian Malone was born with a severe brain injury because the obstetrician gave his mother a drug that had not been approved for inducing labor. His parents settled their legal claim for $2 million

The injury that left Ian unable to swallow or raise his head until he died from pneumonia at age 4 is Exhibit A for opponents of a measure, already passed by the U.S. House of Representatives, that would limit medical malpractice awards for pain and suffering to $250,000.

Supporters of the limit, meanwhile, cite equally wrenching examples of physicians driven from their practices by skyrocketing insurance premiums, leaving their patients adrift.

The dueling anecdotes were the backdrop for crucial votes Monday on a pair of Senate bills that are variations on the limit passed in the House. One measure would permit patients to recover $250,000 for each defendant and as much as $750,000 if multiple health providers were held liable; the second would impose the $250,000 limit for obstetricians only. Richard Durbin of Illinois, the second-ranking Senate Democrat, predicted that Republicans, who control the Senate 55-45, would not muster the support of 60 senators needed to approve bringing the measure to the floor for a vote.

The deadlock underscores the lack of a clear solution to compensate legitimate victims of medical mistakes while curbing rising premiums, said Kenneth Abraham, who teaches personal injury law at the University of Virginia in Charlottesville.

“We have a system that isn’t very good, and we don’t have any alternatives that are feasible,” Abraham said. “That’s the dilemma.”

Malpractice payments rose to $4.5 billion in 2004 from about $2 billion in 1991, according to U.S. government data cited by the Pennsylvania Medical Society in a 2005 report. The average payout per doctor increased to $300,000 in 2004 from $150,000 in 1991, the study said

In the Malones’ case, the drug Cytotec “caused very powerful contractions that were four and five minutes long, and it just smothered Ian in the womb,” said his father, Dylan Malone, of Everett, Washington. Limiting damages to $250,000 amounts to “punishing the victim,” he said. The proposed caps would not include any compensation awarded for actual expenses.

Supporters of the legislation say rising malpractice premiums are causing a crisis, driving doctors away from high-risk specialties like obstetrics, orthopedics and neurosurgery and creating a shortage of physicians in states without liability limits.

Herbert Stein, an orthopedic specialist, said in an interview that he had given up performing surgery five years ago because his annual premium would have risen to $140,000 from $90,000

“I obviously would be doing most of the surgery to pay off the premium,” said Stein, who was chief of orthopedic surgery for 20 years at Frankford Hospitals in Philadelphia and nearby Bucks County, Pennsylvania.

Orthopedic surgeons are frequent targets of malpractice suits because people with smashed knee joints “are not going to have a good result no matter what you do,” Stein said.

In Pennsylvania, where the cost of malpractice payouts per doctor in 2004 was more than double the national average, hospitals and clinics are having trouble recruiting doctors, said Mark Piasio, chief of surgery at the DuBois Regional Medical Center and president of the Pennsylvania Medical Society.

“Nobody is coming to Pennsylvania,” Piasio said. “We are struggling badly in obstetrics.” He said matters were particularly dire in rural towns. Unlike large companies, medical practices are “basically small retail businesses” that cannot pass along liability costs to patients, Abraham said.

He favors making hospitals and health maintenance organizations liable for malpractice. He said doctors helped block that idea when it was proposed by former President Bill Clinton’s health care task force because they feared loss of autonomy if hospitals assumed their liability.

Some of the anecdotal evidence in the debate is provided by the personal experiences of lawmakers. The Senate Democratic leader, Harry Reid of Nevada, said he would have had surgery on the wrong foot if he had not noticed a black mark on his right foot as he was being wheeled into the operating room.

“They erased the black mark on my foot and did the surgery on the left foot,” Reid recalled.

Senator Richard Burr, a North Carolina Republican who supports the cap, related how a college classmate who treated kidney diseases said his liability premiums had soared 300 percent even though he practiced a specialty that rarely generated lawsuits.

Patrick Leahy, a Vermont Democrat who opposes the legislation, told fellow senators a story about Diana Winn Levine, a musician in his state whose left arm was amputated because of complications caused by the injection of a sedative to treat migraine headaches.

In addition to $2.4 million for medical expenses, a jury awarded Levine $5 million for “daily pain” and “loss of enjoyment,” Leahy said, or $4.75 million more than the congressional cap would allow.

(c) 2006 International Herald Tribune. Provided by ProQuest Information and Learning. All rights Reserved.