Debate on non-economic damages cap coming to a head

Daily Record, The (Baltimore), Jan 20, 2004 by Ann Parks

Tomorrow morning in Annapolis, the Maryland Medical Society (MedChi) will rally to reduce Maryland's cap on non-economic damages from $635,000 to $350,000 - a move the society says is necessary to stem soaring medical malpractice insurance costs.

Two thousand physicians are expected to leave their offices to attend, according to MedChi's chief executive, Mike Preston.

They understand we're on the edge of a precipice with respect to the cost of liability insurance coverage, Preston said. As the price goes up, you can't stay in practice.

Rising insurance premiums, Preston believes, are driven by soaring claims payouts made in medical malpractice cases. More money is being awarded by juries, he said.

But groups such as the Maryland Trial Lawyers Association and the Washington, D.C.-based Public Citizen's Congress Watch oppose the move to reduce the cap.

Caps do not affect the insurance rate in any way; they never have, MTLA spokesman Kevin McCarthy said last week.

The proper solution to the insurance problem, he believes, is better quality control of physicians. Three percent of doctors cause 50 percent of the expenses in Maryland - that's pretty serious, McCarthy said, citing a figure from a report issued by Congress Watch last week (see story, page 4B). If I were a doctor, I wouldn't be going to Annapolis, I'd be looking around for those 3 percent.

Daniel M. Clements, a plaintiff's attorney who has fought with MedChi in Annapolis over the Maryland Board of Physicians' Quality Assurance, agrees.

There are a group of doctors who are responsible for an enormous number of claims, he said, adding that MedChi has persistently resisted strengthening the Board, and the discipline of doctors, in the past. Now they want to take it out on the patients when they've refused to undertake what needs to be done, getting dangerous doctors out of practice.

Physician discipline

Maryland's physician discipline reform law, which went into effect in October, requires public disclosure if a doctor has settled three or more medical malpractice cases. But according to Congress Watch's Jackson Williams, that law is so narrow as to be ineffective.

Not a single doctor has been identified under the law, Williams contends, adding that amendments to the law restricted coverage only to cases occurring within the last five years and to settlements exceeding $150,000. The law's reach hits only three doctors, which does not give the public the information they need to know when choosing a doctor.

But Preston feels that Public Citizen's repeat offender argument is misplaced. Less than 10 percent of the money paid since 1993 by Medical Mutual - the only insurer of doctors left in the state, Preston said - was attributable to doctors with three or more malpractice claims, he said.

They're just changing the subject, ignoring the reality, he said. You cannot fix the soaring costs [of medical malpractice insurance] by eliminating doctors with more than two claims, because that represents less than 10 percent of the money paid.

The proper solution, Preston said, would involve a rebalancing of the need to compensate injured parties with the need to fund the payment for those injuries in a way that doesn't damage the system.

MedChi's proposed reforms, he added, are a four-pronged approach addressing economic and non-economic damages, as well as the payment of future losses and attorney's fees.

McCarthy said the MTLA will oppose the legislation that MedChi is likely to introduce. Five hundred thousand dollars is a lot of money if you have a stiff neck, not if you have a catastrophic injury, he said. No one talks about the person who has been injured.