Medical malpractice bill might not pass Assembly
Tuesday, March 18, 2003
BY ROBERT SCHWANEBERG
Star-Ledger Staff
Compromise legislation that its sponsors say would alleviate a medical malpractice insurance "crisis" was approved
yesterday by two Senate committees. But its chances in the Assembly appeared doubtful.
With only a single dissenting vote, the Senate's health and commerce
committees approved the measure, which would impose new requirements for bringing medical malpractice lawsuits and limit the
amounts physicians could be forced to pay for a patient's pain and suffering.
But Assembly Speaker Albio Sires (D-Hudson) said yesterday there is "little chance the Senate's compromise will
attain Assembly passage." He said the proposed limit on damages would hurt patients and undermine
accountability in the medical community.
The Senate plan won support yesterday from The Medical Society of New Jersey, which urged the full Senate to
pass it on Thursday. But the state chapter of the Association of Trial Lawyers of America said it opposes the
bill and predicted it would never become law.
The medical society's president, Robert Rigolosi, said the Senate plan "doesn't have everything we wanted but it's a
reasonable compromise. We've worked long and hard on this bill with the senators."
However, Bruce Stern, ATLA's president, said, "I don't expect this bill is going to get to the governor's desk. After
a year of working on this problem, the bill does nothing to address the high cost of medical
malpractice insurance."
Rigolosi disagreed with that analysis and submitted a statement to lawmakers predicting the bill would "have a real
and positive impact on rates, both immediate and over the long term."
Spiraling medical malpractice insurance premiums, particularly for
specialties such as obstetrics, neurosurgery and radiology, prompted thousands of physicians to walk off the job last month and stage a
Statehouse rally.
Physicians initially demanded a $250,000 ceiling on awards to malpractice victims for pain and suffering, saying it
has held down insurance premiums in California and other states with caps. President
Bush has also called for a $250,000 cap on pain and suffering awards and such a bill passed the House of Representatives.
But in New Jersey, lawmakers refused to limit a victim's right to recover. Sen. Byron Baer (D-Bergen),
co-chairman of the commerce committee, said yesterday that stalemate was broken when Sen. Raymond Lesniak
(D-Union) recently suggested the creation of a state fund to pay awards over $300,000.
That idea became the heart of the bill approved yesterday. The state fund would raise about $25 million a year
through $50-a-year surcharges on lawyers and health care providers and a tax on employers of $3 a year per
employee.
Malpractice victims could still collect their full amount of economic damages -- lost wages and medical bills -- from
the negligent physician or their insurer, but awards for pain and suffering effectively would be limited.
The physician's insurer would pay the first $300,000 and the fund could pay up to an additional $700,000.
Stern said that means the fund effectively imposes a "cap at $1 million," and that would hurt malpractice victims
who suffer severe injuries but have no lost wages.
Stern said a bill that passed the Assembly last December contains no such limits but would do more to help
physicians in high-risk specialties afford insurance by giving them a subsidy.
The bill also requires any lawsuit for an injury to a child under 11 --
whether for malpractice or other injury -- to be brought by the child's 13th birthday. Rigolosi said the society would still like to see a requirement
that lawsuits alleging negligence during a child's delivery must be brought by age 7.
The bill also requires approval by the state insurance commissioner for malpractice insurers to raise rates more than
25 percent, imposes new requirements for expert witnesses in malpractice cases and provides a
way for physicians not involved in a medical mistake to get out of a lawsuit early.
Robert Schwaneberg covers legal issues. He can be reached at rschwaneberg@starledger.com or (609)
989-0324.