Prognosis bad for medical reform
By PETE McALEER Statehouse Bureau, (609) 292-4935
It didn't take a neurosurgeon to spot the thread connecting the three award winners at the American
Trial Lawyers Association conference in Atlantic City.
The first medal went to a 24-year-old cerebral palsy sufferer, a victim of a botched delivery who
told his story at a string of legislative hearings in Trenton on medical malpractice.
The second went to a journalist who exposed "how doctors shield themselves from state law" and hide
medical records from patients.
The final honor belonged to ATLA New Jersey President Bruce Stern, introduced as "the best
example of learning the process of being able to deliver a sound bite." By way of explanation, the
speaker, ATLA member Drew Britcher, offered this Stern gem about February's doctor work stoppage:
"It doesn't matter if it's a mobster or a doctor, extortion is extortion."
When he stepped down from the podium, Stern showed off his medal-winning form.
"Doctors have misdiagnosed the problem and misdiagnosed the solution," Stern told a reporter.
"The New Jersey Medical Society's only interest is to destroy lawyers and the civil justice system."
About the only thing missing from the ceremony was a pinata in a white coat.
That same weekend, the American Medical Association prepared for its third Statehouse
rally in Trenton, taking doctors away from their patients for another day. At the last picketing,
doctors tried to win support for their cause with signs such as "When your water breaks, call your
lawyer" and "Gov. McGreevey, who delivered your Jersey girl?"
A photographer caught two doctors trying to rip away a sign from a man who dared claim the real
malpractice crisis was the number of preventable deaths that occur in New Jersey each year.
Marcus Welby versus Perry Mason this isn't. From the start, the debate on how to lower medical
malpractice premiums has been long on hyperbolic sound bites and short on compromise. That is,
unless you talk to those hurt most by the rising rates: obstetricians and neurologists.
Michelle Torchia, an obstetrician who practices in Vineland and Mays Landing, attended the first
physician rally.Looking back, she said she doesn't think the event accomplished anything
beyond exciting doctors. Thegovernor, Torchia noted, never acknowledged the crowd.
"We've had rhetoric and teeth gnashing on both sides," Torchia said. "Doctors are still moving
out of the state ... As long as attorneys stand on one side and physicians stand on the other, we're
not getting anywhere."
The Medical Society and the Trial Lawyers Association actually agree malpractice premiums
are posing a problem for doctors. They disagree on the cause of the problem and thus how to solve it.
The divide can be summed up in one four-letter word: caps.
Doctor groups, supported by Republicans, say the only way to lower rates is to limit pain and
suffering awards in malpractice cases. Attorney groups say such limits are unconstitutional and
unhelpful. They favor a plan, sponsored by Democrats in the Assembly, to subsidize doctors
facing the highest premium increases.
Each group clings to its side of the caps issue like a shipwreck passenger to a life preserver. If
there is a middle ground, neither side has taken a step toward it. Instead, each group offers reams
of statistics and surveys to convince the Legislature and the media that they are on the
right side of the caps issue. Both accuse the other side of intentionally distorting the facts.
The appeal to the public, however, consists of simple, emotional, often misleading arguments.
A national television ad paid for by the American Medical Association shows a father dying when the
local trauma center where his life could have been saved is closed due to skyrocketing medical
insurance rates.
Advertisements from the Association of Trial Lawyers of America trot out malpractice victims
who claim their rights to a trial by jury are being taken away by greedy politicians.
Although the commercials have yet to air in New Jersey, both are running in a number of states
where lawmakers are considering legislation aimed at lowering malpractice insurance rates.
Torchia said she thinks caps on pain and suffering awards are the best long-term solution for
lowering rates in New Jersey, but she wouldn't turn down subsidies if that's what politicians can
offer. The Medical Society dismisses subsidies as "a Band-Aid."
"We could use a Band-Aid right now," Torchia said. "At least then, calmer heads could sit down and
work on the (caps) issue ... I'd just love to see a strong political figure stand up and fix it.
Even if they didn't fix it to my liking, at least they'd be willing to fix it."
That's the mindset Sen. Joseph Vitale, D-Middlesex, counted on when he walked into a
crowd of doctors picketing outside his Woodbridge office and borrowed one of the bullhorns.
Vitale, adamantly opposed to caps in any form, told the physicians he did not necessarily agree
with their solution to the malpractice crisis, but he had their interests in mind and was trying to
fashion legislation that would be fair to both their profession and their patients.
Months later, Vitale and other Senate Democrats softened their position on caps and helped pass a
bill that limits doctor liability for pain and suffering awards to $300,000 but allows patients
to recover an additional $700,000 from a state Excess Liability Fund.
"Both sides have to give a little," Vitale said. "In the end, it's about what we can all ultimately
decide is in everyone's best interest."
Count Torchia among those willing to compromise. She's too desperate to be stubborn.
"Physicians have an obligation to put down the battle ax and enter into meaningful dialogue to
solve the problem, "Torchia said. "I think we owe that to our patients."
To e-mail Pete McAleer at The Press: PMcAleer@pressofac.com