Sense on Malpractice

Wednesday, March 10, 2004

The medical malpractice bill moving through the Legislature is not what the doctors ordered last year.

It is something better, based on important principles buttressed with solid detail.

Our legal system must do a better job of qualifying expert witnesses in malpractice cases and protecting professionals from shotgun suits (which often name people who were never directly involved in a patient's care). We must do better at deciding if jury verdicts are excessive. This bill provides tools to do those things.

State agencies must do a better job of weeding out bad doctors and regulating the malpractice insurance industry. The bill gives the state Board of Medical Examiners more data to help track errant doctors and gives the Department of Banking and Insurance power to investigate malpractice rate hikes.

Last year, organized doctors refused to support any malpractice reform that did not include a limit on the amount malpractice juries award for non-economic damages, or pain and suffering. The medical lobby convinced the Senate, but Assembly Democrats wisely blocked the cap. The current bill is based on the Assembly's reform plan of last year.

It includes a $90 million public fund to subsidize premiums for those most severely affected by big malpractice rate hikes. The fund would be paid for by assessments on lawyers, health practitioners and employers. Although far better than a cap, the fund is not an ideal solution.

It is, however, in the public interest to make certain that the doctors we need get the help required to keep them in practice. The fund's best feature is that when doctors draw from it, the state will get concrete information about the scope of the malpractice crisis. So far, there have been claims and guesses but no hard data.

There is one thing every lawmaker in Trenton must understand. If there is a fund, the Department of Banking and Insurance must have the power to make certain we subsidize only those premiums that are reasonable and justified. Otherwise, we will be creating a $90 million pigeon for the insurance companies to pluck.

The bill says the department can roll back malpractice premium hikes if it determines that the increases are not warranted. That provision is a must. Any attempt to dilute it should send patients marching on Trenton the way the doctors did when they lobbied for their cap.

You will not hear New Jersey's medical lobby calling for caps right now. The physicians went on a political vendetta during last year's election, campaigning to unseat the Democratic majority in the Assembly and promoting a national Republican campaign for caps on torts. The doctors lost, and both houses are controlled by the Democrats. For now, malpractice caps are politically dead.

No state has found a complete answer to its malpractice problems, not even the states that have caps. The Assembly package includes a task force to keep looking for the answer our state needs.

In the meantime, New Jersey has an opportunity to pass common-sense reforms. We should take it -- even as we enjoy the silence of a medical lobby too busy eating crow to scream about caps.