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Thursday, January 30, 2003

By Byron Spice, Post-Gazette Science Editor

President Bush's prescription for solving the medical malpractice crisis by limiting jury awards for pain and suffering can't do much harm but won't do much good either, according to the Columbia University law professor who is leading a study of Pennsylvania's malpractice problems.

The call for a $250,000 cap on punitive awards has become a litmus test among politicians that has everything to do with attitudes about lawyers but very little to do with health care, said Dr. William Sage, a physician and lawyer who is principal investigator for the Pew Charitable Trust's Project on Medical Liability in Pennsylvania.

Sage spoke yesterday at the University of Pittsburgh Graduate School of Public Health.

Based on the experience in California, where punitive damages have been capped since 1975, Sage said this type of limit on jury awards does reduce volatility in malpractice cases and consequently in malpractice insurance premium increases. But it does nothing to stop the growth in medical malpractice awards in general, he said.

What is driving costs upward is not punitive awards, but the fact that more people are surviving injuries with permanent disabilities that will require decades of expensive care and loss of income.

"That's real money that has to be paid," Sage emphasized, falling under the category of actual damages. Doctors themselves seem to overestimate the benefit of a cap on pain and suffering damages, he said.

So when Bush argued in an address in Scranton earlier this month that lawsuits are driving up the cost of medical care, "I believe the president got it exactly backward," Sage said. It is the medical care industry and its costs that are growing and malpractice costs rise as more medical care is provided.

Malpractice premiums have increased more than 500 percent in the last 30 years, he acknowledged, but medical expenditures increased by more than 1,000 percent in the same period.

One difference between this malpractice crisis and those that occurred in the '70s and '80s is that many more controls have been placed on costs, so doctors can no longer simply increase their charges to compensate for higher premiums.

Recent jumps in medical malpractice premiums are a problem in Pennsylvania, Sage said. That's not just because frustrated doctors might leave the state or retire early, he argued, but for more subtle reasons. Many doctors are limiting the scope of their practices, no longer providing certain surgical procedures or medical services that increase their risk of being sued.

Women's health is particularly affected, as obstetrician-gynecologists forsake handling births for fear of delivering an infant with physical or neurological defects and radiologists become reluctant to read mammograms for fear of being sued if they miss a cancer.

It's important that something be done in the short term to help doctors pay their premiums, so people continue to have access both to physicians and all of their services, he said.

But in the long term, Sage said, changes must be made that improve the health care system in general and address other pressing problems. For instance, as was made clear in a landmark 1999 report by the Institute of Medicine, many avoidable medical errors continue to be made and most patients who are injured by those mistakes by health care workers never receive any compensation.

The real problem, he said, is that too little incentive is provided to physicians and health care systems to pursue innovations that reduce errors and improve the quality of care.

If Congress were to enact a nationwide cap on punitive damages, as Bush suggested in his State of the Union address, it would not end malpractice lawsuits or the growth in malpractice premiums.

"Government will simply have missed an opportunity for substantive change that improves the health care system," he said.

No state has solved the problem yet, Sage said, but the solution is likely to come in states, such as Pennsylvania, that are now in crisis.

"Pennsylvania is a wonderful state for trying to do something about this problem that would actually improve health care," he said. Despite public posturing, the stakeholders in the debate have shown a willingness and an ability to sit down and reason with each other, he explained.

The Pew project, launched last year, will continue through 2004.

Byron Spice can be reached at bspice@post-gazette.com or 412-263-1578.