Doctors have put a cap on the truth

Tuesday, February 18, 2003

The demonstrating doctors have been playing a catchy but monotonous and thoroughly misleading tune about malpractice.

For all the screaming about runaway juries and big malpractice awards, the evidence is not there. In the meantime, physicians and their malpractice insurance companies have kept silent on issues that call for facts and answers. The silence is no longer merely suspicious, it is sinister.

A study by the state Administrative Office of the Courts did not find the big spike in suits and jury awards the Medical Society of New Jersey and the demonstrating doctors claim as the reason some of them have been hit with untenable increases in malpractice premiums.

Last year, the number of suits dropped from 1,776 to 1,656, and the doctors won most of the time. Of 205 cases that went to jury verdict, the doctors won 151. Where are the "runaway juries" handing over millions to anyone with a sob story?

The fact that juries sometimes find malpractice should not be brushed aside. In 54 cases in which juries did, the awards averaged $939,000, with 18 verdicts of $1 million or more, including three for more than $5 million.

But half the verdicts were for less than $300,000. Yet the doctors, by walking out on their patients, are blackmailing the state for a no-exceptions legislated cap of $250,000 on judgments for pain and suffering.

They have presented no evidence that most people get anything close to that or that those who do are not entitled to what they get. It may be that inflation in medical malpractice awards reflects the higher costs of the medical care, rehabilitation, lost wages and other calculated legitimate economic damages -- costs that will remain even if we set a cap on pain-and-suffering awards.

Keeping cases out of court seems to be the major purpose of the $250,000 limit doctors want on these awards. That is how the system works in states that have caps. It is a figure that makes cases less attractive to the attorneys capable of mounting the resources required to win cases the insurance companies decide to contest.

A good part of any malpractice award is eaten up in legal costs. That is a shameful fact of our litigation-based system. But will capping pain-and-suffering awards at $250,000 make things better for people with injuries to care for or just help insurance company bottom lines? The state study found $1 million awards. But the study cannot tell us how often those awards were reduced on appeal or through the negotiations that go on while an appeal is pending, let alone the details that may show the awards were justified. In some cases, deals that put a floor and a ceiling on what a patient will get are made before a jury can speak. Those deals, not the jury, determine the size of the check the insurance company eventually writes.

Most cases are settled out of court, often with confidentiality agreements that shield the identities of problem doctors who patients should know about. If doctors get their cap, will we get more truth and light?

The doctors have railed about a $42 million California jury award to a 2-year-old child. But the child's family settled for far less -- $2 million from one defendant, $1.9 million from another, minus $914,000 in legal costs. That money is for a child who once was healthy but is now blind, has cerebral palsy and a host of other problems. The malpractice suit said the child had an injury that might have been treated successfully had doctors performed a CAT scan on any of the three occasions the parents begged them for the examination, even as their son got worse.

What insurance companies pay is not always as much as the awards that make headlines. Many doctors made that point themselves during the malpractice crisis of the 1970s. The doctors accused insurance companies of setting aside too much in reserve against future claims. Why aren't doctors raising the same complaints now?

They are not because most doctors are now covered by insurance companies that doctors themselves run and invest in, companies they organized in response to the last crisis.

The Medical Society of New Jersey is one of the single largest shareholders in the medical malpractice company that until recently covered most of the doctors in this state. That company ran into money trouble, at least in part because of a decision to expand into other states. A board replete with officers of the Medical Society made that decision. A company with New Jersey hospital executives on its board is the other major carrier in the state.

There are good doctors who have suddenly been hit with premiums they cannot afford. Why? The question has not been fully answered. Nor have the data supporting the premium increases been provided.

Until they get the answers, our lawmakers must resist the pressure to change our legal system in a panic and set up funds that might well provide a taxpayer subsidy for the very doctors who need to be drummed out of practice.

Lawmakers should be open- minded about possible remedies for malpractice. But the doctors have reduced the conversation about reform to a chant for a $250,000 cap or else. There are many other possible remedies. In California, which pioneered the caps and saw them have little effect on premiums, there are also tough state regulations on premiums, brought about by a voter initiative, Proposition 103. (More on thattomorrow.)

The public response to the doctors and their demands should be an unrelenting demand for the truth.