Just the facts on medical malpractice

Monday, April 07, 2003

In the days before New Jersey doctors staged their February walkout for malpractice reform, they were busy communicating by e-mail, bragging about the lightning speed with which legislators in Ohio and West Virginia had reacted after doctors in those states walked out.

Our doctors wanted the same result.

In one e-mail that the consumer group Public Citizen pulled from a New Jersey doctor Web site, one doctor urged the MDs to "Cause confusion and inconvenience" for patients.

"Surgeons who have canceled elective cases for that week SHOULD NOT RESCHEDULE. We can significantly inconvenience them (which is NOT irresponsible) and direct their anger from this to help our cause," another wrote.

"If all this zeal is perceived as a bunch of half-clocked whining millionaire physicians, the efforts will go nowhere and you'll continue to be murdered in the national press," one doctor said.

They told each other to stay on message: High premiums mean no baby doctors, no neurosurgeons when you need them. The media would jump on the story like a "500-dollar whore," and the legislation would be right behind, the doctors told each other.

The doctors have stayed on message, but it is a very limited, anecdotal one. No one should doubt that there is a malpractice problem. Some doctors, particularly obstetricians, neurosurgeons and other high-risk pecialists, have been suddenly hit with horribly high premiums. Good doctors need relief.

However, we have talked to members of the Medical Society of New Jersey hierarchy who are paying $8,000 and $15,000 a year, figures that do not seem extraordinarily high in proportion to their incomes.

Yet "staying on message" has created the perception that all doctors are being driven out of state or out of the practice of medicine.

The hiatus between last month's Senate action on a malpractice reform bill and the Assembly's return to action next month allows this state to do what some others did not. We can gather information and think.

We need malpractice reforms. Crisis or not, we must improve pretrial screening to cull out frivolous suits and the shotgun actions that drag in professionals with little involvement in a patient's treatment. We must examine the statute of limitations for malpractice and shore up informed consent. We must institute regulations to take a hard look at companies that hike premiums by double digits. And we must do more to prevent malpractice and get bad doctors out of practice.

The doctors want a cap on jury awards for pain and suffering. California has one, and California's malpractice premiums have not risen like those in the rest of the country, the message goes. But California's premiums started higher than the rest of the country's, premiums there continued to rise for years after the cap and California also enacted substantial insurance regulatory reform. There is no room in the "message" for those details.

New Jersey's court system has looked at its records and found no evidence of runaway juries handing out money like candy. Our juries, the same ones to which we entrust the rest of our justice system, find for the doctors in the vast majority of the cases that go to court.

However, most malpractice cases are settled out of court, which means outside of public view. If insurance companies are settling for big numbers, based on a fear of what might have happened in a few atypical jury cases, exactly who and what are really driving up the cost of malpractice coverage? And what is the price of letting the public assume the insurance companies' risk, either by capping pain-and-suffering awards or by paying part of the bill, as the Senate legislation would do with a public fund that covers up to $700,000 once insurance pays $300,000?

Could we end up with a bigger mess than we have now?

The state of Texas collected malpractice data from other state insurance departments. The Texas charts say New Jersey's premiums, including those for high-risk specialties like neurosurgery, are a just little higher than premiums in San Francisco and Sacramento, Calif., and lower than in Los Angeles and Arizona -- places where there are caps on pain- and-suffering awards.

We do not think New Jersey should rely on a study from Texas or from the lawyers or doctors. The Legislature should stop listening to anecdotes and slap a subpoena on the companies that cover our doctors. Protect the trade secrets, but find out what the bill actually is for pain-and-suffering awards and determine the effect of inflation on economic damages, which would not be touched by a cap. Find out the size of the checks being written after trial judges, appeals courts and out- of-court settlements adjust downward the amounts that appear in the headlines. Get the facts.

The state should permanently assign someone in the Department of Banking and Insurance to track cases from the day they are filed until they are settled, whether in or out of court, so that state regulators and lawmakers can react to real information, not anecdotes and public relations campaigns.

The national reaction to this crisis is akin to a doctor prescribing chemotherapy before making a diagnosis. No one should treat patients that way. No one should make law that way.