Election year issue: doctors push for liability caps

OB/GYN News, August 1, 2004 by Mary Ellen Schneider

For many physicians, the arguments on medical liability reform boil down to caps.

"We think that a cap [on noneconomic damages] is critical to any kind of liability reform," said Dr. Angela F. Gardner, who is an emergency physician in Dallas and a member of the board of directors of the American College of Emergency Physicians.

The presidential candidates have clearly different positions on caps. President George W. Bush favors a $250,000 cap on noneconomic damages, while the Democratic challenger Sen. John F. Kerry (D-Mass.) opposes capping any damages, according to the candidates' Web sites.

President Bush's position is that caps will hold down premiums by keeping jury awards from spiraling out of control. Lower premiums will mean lower costs for doctors and greater access to care for patients.

But Sen. Kerry's position is that caps just don't work and hurt patients who have suffered serious injuries due to malpractice.

Instead, Sen. Kerry proposes limiting punitive damages to cases in which there is proof of intentional misconduct, gross negligence, or reckless indifference to life. He also proposes keeping frivolous cases out of court by prohibiting medical liability cases from going forward until a qualified specialist determines that a reasonable claim exists.

Sen. Kerry would also require states to make nonbinding mediation available in all cases before allowing plaintiffs to proceed to trial on any medical liability claim.

President Bush, like Sen. Kerry, supports limiting punitive damages to reasonable amounts and only in cases where they are justified. President Bush also supports requiring that cases be brought within 3 years after the manifestation of an injury or 1 year after discovery of an injury, whichever occurs first.

Enacting a federal limit of $250,000 on noneconomic damages is an important first step, said John C. Nelson, president of the American Medical Association.

The AMA is lobbying Congress and at the same time working to enact liability reform at the state level. So far, the AMA has declared 20 states to be medical malpractice crisis states.

The AMA has signed up 100,000 patients to receive e-mail alerts about medical liability and encourage them to contact their members of Congress. "We certainly want to engage our patients," Dr. Nelson said.

Twenty-two states have enacted caps on noneconomic damages, and six states have a cap on total damages, according to the AMA.

Federal legislation that would limit noneconomic damages in malpractice cases has successfully passed the House of Representatives, but remains stalled in the Senate where proponents are still several votes short of forcing debate on the issue.

Doctors for Medical Liability Reform, a coalition of specialty physicians, is trying to narrow the gap in the Senate by making medical liability reform an issue in this year's election. The group is asking House and Senate candidates to sign a pledge to support federal legislation to limit noneconomic damages in medical liability cases to $250,000, a DMLR spokesman said.

But caps aren't the only reforms necessary. Enacting caps is key, but it only makes a broken system less expensive, Dr. Nelson said.

The AMA also wants to work to make the tort system fairer for patients, more predictable, and more accountable, he said.

For example, the AMA favors a limit on contingency fees for attorneys.

The American College of Obstetricians and Gynecologists is also pushing for caps as the best chance to lower or stabilize insurance premiums, said Dr. John Gibbons, who is ACOG's immediate past president.

Ob.gyns., in particular, are in a state of crisis, Dr. Gibbons said, and either premiums will go down, reimbursements will go up, or physicians will leave medicine. "They can't afford to stay in practice," he said.

ACOG has also encouraged its members to get involved politically. "We have told them to get active," Dr. Gibbons said. "We have told them to involve their patients."

Dr. Gardner of the emergency physicians said that caps will bring predictability back to the process of setting insurance premiums.

For example, last fall, Texas passed medical liability reform legislation that capped noneconomic damages at $250,000. It's too early to predict the impact of the law. Dr. Gardner said, but since January the Texas Medical Liability Trust, a physician-owned insurer, has decreased its premium rates by 12%.

Dr. Michael O. Fleming, president of the American Academy of Family Physicians, said he's concerned that Sen. Kerry seems to be refuting the data available on the success of caps.

"The data are clear that states that have caps have significantly lower rates," Dr. Fleming said.

BY MARY ELLEN SCHNEIDER

Senior Writer