Welcome to 'Tort Hell' - West Virginia, that is. A 'doctors crisis' - doctor shortage in state caused by legal atmosphere

National Review, August 20, 2001 by Jay Nordlinger

The state of West Virginia, no stranger to problems, has a severe one on its hands now: a "doctors crisis." That's what many are calling it, and with good reason. West Virginia is losing doctors every day; communities are going without care; no doctors are coming in-it is almost impossible to recruit. The problem is the legal atmosphere: The state has earned the designation "Tort Hell," or, if you are a plaintiff's attorney, "Tort Heaven." In probably no other state is it as hard to be a doctor, or to remain one. Doctors are becoming desperate; the public, slowly-and in some areas, not so slowly-is waking up. The need for reform is crying. Of course, this need is felt all across the country; but nowhere is it felt more acutely than in West Virginia.

What makes things so tough? First, medical-malpractice insurance-or, as doctors prefer to call it, "liability insurance"-is through the roof. Many doctors simply can't afford it, or, even if they could, can't get it. Then, the state slaps a "provider tax" on all doctors, in the amount of 2 percent of gross income; this is a tax merely for being a doctor, imposed on no other citizen; only one other state in the nation does this (Minnesota). Then, West Virginia-or, more accurately, West Virginians-are wildly litigious. They have long been happy to stick it to doctors. Lawyers, naturally, thrive in such an environment. Some of them even advertise as follows: "If you have had such-and-such a procedure, come see me: There could be some money in it." These ads don't suggest that something went wrong during that procedure, that the doctor was negligent in any way; the mere fact that the procedure has taken place is enough to put dollar signs in eyes.

Not often do doctors become political activists-the placard-bearing, slogan-shouting, fist-shaking kind-but, as their insurance rates shot up and their practices were endangered, West Virginia doctors, as a class, got moving. Back in February, they staged what they called "White Coat Day." This was a Day of Rage/Day of Lobbying in which they swarmed the state capital, Charleston, and let the government know of their situation. Hundreds of doctors harangued legislators and warned the public: You may not like us-you may think we're a bunch of fat cats-but if things keep up, you'll have no one to take care of you. In one tense session, a doctor cried out, "Tax the trial lawyers!" Soon after, a radio message was aired: "Got a cold? See a lawyer."

Everyone has a horror story to tell; the dismay-sometimes panic-in doctors' voices is real, unfeigned. People are having to leave, retire early, or cease performing "high-risk" procedures, or even medium-risk ones: A doctor may stop delivering babies, or pulling tonsils. The Ohio Valley-which includes Wheeling-is now without neurosurgeons; they've all gone away, fed up. Says Evan Jenkins, executive director of the state medical association, "If your child falls off the bleachers [in the Valley], you better hope the ambulance has a lot of gas in it, because you'll have to go to Pittsburgh or Morgantown." This is dramatic language, but the doctors feel it's necessary to sound the alarm. In the Beckley area-rural and poor-pregnant women are in a bind: The obstetricians have had to quit, because their liability insurance has become unaffordable, or unavailable. And Huntington-the second- largest city in the state-is fast being depleted of its top doctors, particularly its specialists.

One of those is Jane Kurucz, a general surgeon who specializes in breast diseases. Hers is a typical case, but with an unusual twist: On Sunday afternoon, July 29, a rally was staged in support of her, in a downtown park. The event was organized by a patient, unhappy at losing her doctor, and, more than unhappy, angry. Dr. Kurucz has been practicing for 13 years. In that time, she has had one lawsuit against her (amazingly low for West Virginia), now pending. On May 1, she received a letter informing her that her insurance would not be renewed. In 1999, that insurance cost $40,000; the next year, it went up to $60,000; now it would cost $80,000, if she could get it-and that would be for only six months, because the insurance company figures it will have to raise the rate after that. The doctor has been unable to buy insurance from any other company; insurers, quite naturally, avoid West Virginia with shudders. Jane Kurucz had to close up shop on August 1.

She has options, however, the best of which is to move 20 miles to the west into Kentucky. There, she could double her salary; would pay about a third of the West Virginia rate for insurance; and would be free of that 2 percent provider tax. To top it off, many of her patients would be able to follow her.

So, this particular doctor will land pretty happily-but she is far from ecstatic. Her story goes to the heart of the West Virginia doctors crisis. Dr. Kurucz is a native of the state, as is her husband, also a doctor (they practice together). The two of them wanted to make their lives at home. They could have stayed in New Orleans, where they trained, and where the husband was on the faculty at Tulane; they would have earned significantly more money. But they wanted their children to be near their grandparents, and they felt a loyalty to their state, as many West Virginians, even those forced to go elsewhere (maybe especially them), do. Dr. Kurucz is not interested in riches. "I was comfortable making what I was making [in Huntington]," she says. "I would never have looked elsewhere if I hadn't gotten that letter from my insurance company."