Prescriptions for Disaster

President George W. Bush wants it. So do doctors around the country. So why is it a bad idea to cap damage award packages in malpractice lawsuits?

The answer is simple: It asks consumers to pay the cost of fixing flaws in a system created by doctors and the insurance industry.

Most patients are at the mercy of their doctors, to start off with. Doctors have spent years in school, acquiring specialized knowledge and tend to treat their patients as if they are grade-school students learning mathematics for the first time. It is an intimidating situation.

So we take what doctors say at their word and if they prescribe the wrong medication, suggest the wrong treatment or make a mistake, we are left with few choices. We can report incompetent doctors to the state medical board and hope they have their licenses revoked and they are prevented from practicing.

But what if a doctor's mistake results in disability or death? Shouldn't we be able to recoup lost income or impose a monetary penalty on the negligent doctor?

That's where malpractice litigation comes in.

"While the malpractice system is far from perfect, especially as regards protecting patients from preventable harm, it is the only thing in place to hold health care providers and professionals accountable," Arthur Levin, director of the Center for Medical Consumers, told me recently.

Doctors and the insurance industry don't see it this way, however. They view malpractice claims as frivolous and a drain on the health care system, rather than as a necessary protection for patients. So they are pushing for caps to be imposed to keep their own costs down.

New Jersey is a case in point, according to doctors here, who staged a work slowdown in February.

According to Dr. Michael Richardson, president of the Middlesex County Medical Society, the average malpractice insurance premium rose 41% in the past year for all physicians in New Jersey. He also says high-risk specialists such as obstetricians and radiologists have seen their insurance rates increase by 90%.

But if rates are rising, consumer groups say, it is not because of malpractice claims. In fact, according to the Center for Medical Consumers, malpractice claims have been on the decline. The center cites a study by the National Association of Insurance Commissioners that showed a 4% decrease in the number of new claims -- down to 86,480 claims in 2000 from 90,212 claims in 1995.

In New Jersey the numbers are similar. According to the Administrative Office of the Courts, the number of claims dropped 1%, from 1,776 in 1998 to 1,613 in 2001.

Doctors should blame increasing rates on the insurance companies and the stock market, according to the Consumer Federation of America. Rates are increasing, the federation says, because insurance companies are looking to recover money they lost when the stock market dipped. The federation says that malpractice insurance must be looked at within the context of the insurance market overall and that commercial insurance rates are on the increase generally.

More to the point, however, there is no evidence that capping awards will do anything about premiums, according to a statement from the Consumers Union, a national consumer advocacy group that works on health care issues.

"Such limits are not only ineffective; they are unfair to the patients who are injured and to the families of those who die because of grossly negligent behavior by health care providers," the group says. "There is no guarantee that this plan will lower rates. It does nothing to enhance patient safety or reduce medical errors, and it puts an unfair burden on innocent victims of malpractice."

The Association of Trial Lawyers-New Jersey cites a report from the Medical Liability Monitor that showed that malpractice liability rates tend to be higher in states with caps than without caps.

And Joan Claybrook, president of Public Citizen, a national advocacy group that also works on health care issues, agreed.

"Most injured people don't sue," she said at a January press conference. "They turn to the courts in egregious situations. Capping damages will only hurt those who have suffered the most. Juries, which hear all the evidence, should decide how much an injured patient deserves, not politicians, who are trying to please their wealthy insurance industry contributors."

The key, as I said earlier, is that the only people who benefit from a cap on judgments are the insurers and the doctors. The rest of us get to pay for it in the end.

"To see a community value in denying seriously injured patients the right to fully recover damages is a perverse twisting of values," Mr. Levin said. "The message is that doctors are more important than patients and that doctor's incomes deserve more protection than the future lives of patients harmed by negligence."

For more information on how to fight the damage award caps contact the following groups:

Center for Medical Consumers, 130 Macdougal St., New York, N.Y. 10012-5030;;

The Consumers Union, 101 Truman Ave., Yonkers, NY 10703; (914) 378-2000;

Public Citizen, 1600 20th St. NW, Washington, DC. 20009; (202) 588-1000;

Hank Kalet is a poet and managing editor of two central New Jersey weekly newspapers. Email

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