At opposite ends of an argument over malpractice insurance, and speaking the fervent language of self-interest, doctors and trial lawyers both held rallies in Harrisburg last week. The doctors won the first round -- and deservedly so -- with the state House of Representatives passing a bill proposing sweeping changes aimed at reducing the costs said to be driving some physicians out of practice.
In late December, the issue had become crisis enough that Gov. Mark Schweiker directed that emergency steps be taken to help doctors deal with their soaring health insurance costs. According to the Pennsylvania Medical Society, rates for liability insurance rose 21 percent to 60 percent in 2001 and insurance carriers again have raised this year's rates substantially.
HB 1802, which passed the House last Tuesday by a decisive 164-32 margin and is now before the Senate, attacks the problem on several fronts, and includes a good dose of old-fashioned tort reform. Most controversially, damages in malpractice suits would be capped at $250,000 for pain and suffering (a patient would have to sign a form agreeing to this, and presumably an individual physician might choose not to treat a patient if he did not sign). However, economic damages would remain uncapped -- a more crucial point in protecting the rights of patients.
The bill also addresses the Professional Liability Catastrophe Loss Fund, known as the CAT Fund. To practice medicine in Pennsylvania, a doctor must carry $1.2 million in coverage -- $500,000 from private sources with the remaining $700,000 coming from the CAT Fund, to which doctors contribute.
Under this bill, the CAT Fund would be placed under an independent authority and the level of coverage doctors obtain from private insurers would be increased and the CAT Fund coverage lowered if a study finds that conditions allow it. Eventually, the CAT Fund might be eliminated altogether, although the fund has a large unfunded liability that needs to be addressed.
The trial lawyers argue that the rights of patients injured by malpractice are severely restricted by this bill -- a position that the Post-Gazette would dispute. In a press release issued after the House action, the Pennsylvania Trial Lawyers Association also faulted the bill because it did not include any "meaningful" patient safety measures at a time of persistent medical errors. "Meaningful" turns out to be the operative word in this critique.
In fact, a whole section of the bill is devoted to patient safety. It includes such sensible measures as setting up a Patient Safety Authority to collect, analyze and evaluate data on serious medical problems, including the identification of trends, with a view to making recommendations. The bill sets up a system so that health care workers can anonymously report serious problems.
The trial lawyers see the doctors' woes less as an indictment of the current system and more as the result of a combination of unusual or temporary factors. They include the failure of several malpractice insurance companies in recent years, the system catching up with a backlog of cases and now the generally poor state of the economy, which reduces insurance company investments. The trial lawyers also say that outrageous jury verdicts are the exception rather than the rule.
The trial lawyers make some good points, but the Post-Gazette doesn't believe the status quo helps the doctors. Actually, for both sides, this may be a problem more acute in the eastern part of the state than in west. Philadelphia juries are widely thought to be more likely to punish physician defendants (a perception that the trial lawyers say is a myth), and doctors who quit their practices seem to be more common there than here. But, obviously, the issue has statewide reach.
The system needs to be changed and tort reform recommends itself. The current system provides a good life for trial lawyers, but society is not served by making "pain and suffering" a legal lottery that offers the chance of turning medical misfortune into a bonanza. The cosmic argument that the threat of large damage awards make doctors more careful makes no more sense than saying that the piratical scavengers who once lit fires on beaches to lure sailing ships to their doom made captains more careful about navigation.
Following the lead of the House, the Senate should prescribe tort reform as the medicine for what ails Pennsylvania's doctors.
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