Doctors' case isn't proved

Thursday, May 15, 2003

New Jersey physicians converge on Trenton today, bearing signs and slogans. It is the third time in recent months that they have demanded a limit on the amount patients can recover when they win malpractice cases against doctors.

But while the doctors are outside marching, legislators should be writing subpoenas to get the answers they must have before passing any malpractice legislation, however hard the doctors press them. There is another interested party that has been far less visible than the physicians -- the insurers who change the premium rates the doctors are protesting.

The doctors have walked out on their patients, rallied before lawmakers and repeated their position over and over. But neither they nor their insurance companies have done a convincing job of explaining why there suddenly is a crisis after nearly 20 years of malpractice calm, a period without the caps now deemed so essential.

A bill that has passed the Senate would put a $300,000 limit on what doctors and their insurance companies pay a malpractice victim for "pain and suffering." A state fund would then kick in as much as $700,000 more. However, lawmakers have yet to be told how much insurance companies are paying out now in pain-and-suffering awards. How often is the amount awarded by a jury reduced by judges or on appeal? How many awards are under and more than $250,000 or $300,000?

It would be irresponsible for the Legislature to promise to pay any bill without first finding out what the total charge is. If insurance companies are to benefit from limiting lawsuit awards, should they not have to show how they are being harmed and how badly under the current system?

An Assembly bill would create a state fund to pay a portion of the malpractice premiums for doctors hit with sudden, untenably high rates. At least that solution addresses the immediate problem of good doctors, particularly obstetricians, who cannot afford their malpractice rates and may have to move their practices, limit or even drop them.

However, there is nothing but anecdotal evidence to say how many such doctors there are and how much more they are all paying.

The subsidy solution comes with the major risk of subsidizing bad doctors whose premiums are high because they have many justified claims against them. Our idea of malpractice reform is for the state Board of Medical Examiners to grow teeth and put doctors like that out of business or at least let the public know who they are.

Not all doctors are paying ultra-high premiums. A member of the Medical Society of New Jersey hierarchy is paying $8,000 after recent increases and is in a speciality that should be able to absorb that as a cost of doing business. Compare that with the $6,300 it costs for the cheapest commercial health insurance policy available to a family of four in New Jersey, a state about to reduce its health subsidies for the working poor even as it raises the possibility of a new subsidy for doctors.

New Jersey already has a pretrial review that culls out truly frivolous malpractice suits. Juries find for doctors in 80 percent of the cases that go to court. And a state review of cases found no evidence of the big dollar awards the organized doctors claim are common.

The Senate and Assembly bills include provisions that would require expert witnesses to be specialists in the fields they testify about. They would also have to offer a textbook, medical journal or other reference to substantiate accusations that a doctor violated some basic standard of care.

The bills have provisions to discourage the shotgun suits that name doctors and health personnel who have no direct involvement in the case at issue. If professionals are severed from a trial early on because they were not meaningfully involved in a plaintiff's care, the malpractice carrier would not be able to use that claim as a reason for increasing premiums.

Although judges already have power to reduce a jury award, the bills make it clear that the judge is expected to reduce any award that seems unreasonable.

Those are strong protections for doctors. Add them to what we already have and it would seem that if a jury and judge -- the same people we depend on to mete out justice in every other instance -- say that a plaintiff deserves a sizable award, maybe we should believe them.