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August 6, 2004

Slaying the Medical Malpractice Dragon

Richard B. Weldon Jr.

In previous columns here on The Tentacle, I hope I've convinced you that this medical malpractice insurance crisis is very complex. I also hope I've proven that there is plenty of blame to share, that making one party responsible is unfair and unrealistic. Legislators should be motivated by a fairly simple set of criteria when attempting to solve the problem of escalating malpractice insurance premiums. Certain questions must be answered. Then they will have their criteria.

Will the change make health coverage more available and accessible?

Will the change lower the overall cost of health care?

Will the change stem the loss of medical practitioners?

Will the change protect patients from harm, intentionally or inadvertently? The Trial Lawyers Association has worked hard to portray this whole issue as the big insurers getting rich on the backs of medical professionals, at the expense of citizens seeking medical care. They have no answer when faced with the fact that at least one medical malpractice underwriter is a NON-profit, and their argument just doesn't carry water. So here goes. My suggestions are largely based on reforms that are ALREADY working in other states. No legitimate reason to be reinventing the wheel here!

  1. Adopt a requirement that MEDCHI (the state medical society) take responsibility for monitoring doctors who are found guilty of mal/misfeasance. MEDCHI should report to the State Department of Health and Mental Hygiene (DHMH) semi-annually on the doctors they are monitoring. This saves state taxpayers from having to build and sustain an oversight bureaucracy. Let the docs pay for that!

  2. Shorten the period of time within which a medical malpractice case can be brought. Several states have seen major system cost and management savings through a tightened "statute of limitations."

  3. Allow for future damages to be paid out over time, or at least periodically, without the plaintiff's consent. This helps reduce the "lottery" aspect of these judgments.

  4. State regulation of attorney contingency fee arrangements. These contingency fee agreements are the fuel behind the malpractice crisis. State regulation will introduce some sense of responsibility, something sorely lacking in the current scenario.

  5. Authorize inclusion of arbitration clauses in medical service contracts. Arbitration almost ALWAYS gets the job done for less than the full cost of a jury trial, while still respecting all points of view and legal arguments.

  6. Cap non-economic losses at $250,000. The cottage industry of expert witnesses will no doubt object, since this cuts into their pot o' gold. Too bad. A cap reduction will have an immediate and substantial positive impact.

Taken together, these reforms will fundamentally alter the landscape of the malpractice crisis. The market for this kind of insurance will stabilize; costs to doctors (especially practitioners in high-risk specialties) will come down; the cost of health care attributed to the insurance premiums will be controlled; some practices that have closed can re-open; and student doctors can comfortably reevaluate their career choices.

Trial attorney's can still advertise for these cases, but they may not be as lucrative as they once were. Doctors who hurt or injure patients through improper actions will be held accountable, both financially and professionally. With MEDCHI working hand-in-hand with DHMH, we'll be sure to track these practitioners to prevent future incidents.

I'm certain that there are other, equally effective solutions. Maybe another viewpoint will emerge. We need to begin the process of legislating a solution right now. Time is running out for everyone, and we cannot afford to wait!

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