Medical Malpractice Mess Is One Huge Headache

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The New York Times

If you want to step into a true hall of mirrors, try to figure out the issue of medical malpractice insurance that drove thousands of doctors out of their offices and hosipitals and — as some wags said — off the golf courses to protest at the State House this month.

The doctors’ argument seems perfectly reasonable: having to pay tens of thousands of dollars to protect yourself against rapacious trial lawyers is unreasonable. Best to put a limit of $250,000 on pain and suffering claims by unhappy patients, as other states have done.

Then ask the lawyers. They say that a child who lost her sight because of a bungled operation is owed more than the median price of a house in Bergen County.

But, the doctors reply, if you keep pushing up malpractice fees with outrageous jury settlements and lawyers’ fees, so many doctors will leave the state that there will not be any more operations.

The two sides do not even agree on what works and what doesn’t. The Medical Society of New Jersey maintains that California restrained the growth in medical malpractice fees by imposing the $250,000 cap on jury awards for pain and suffering. But an organization in California called The Foundation for Taxpayer and Consumer Rights — which looks and sounds a lot like a lawyer-friendly group — showed up in Trenton to say that insurance reforms, not caps on jury awards, were responsible for that.

There should be a general law of politics stating that any issue too complicated for your normal slow-witted reporter to understand has a time bomb hidden in it somewhere for politicians. Real estate taxes have the same kind of circularity about them — it turns out they’re nobody’s fault! — and they have cost plenty of elected officials their careers. If it’s hard to explain, it’s dangerous.

The Medical Society and its president, Bob Rigolosi, clearly won the first round of this muddled debate by turning thousands of white coats out onto State Street almost two weeks ago. Members of the news media, probably excited about being able to see a doctor without having to wait an hour, gave the event big coverage.

Though Governor McGreevey wanted to keep talking about his budget problems, he, too, paid attention. Like most Democrats, the governor is on the side of the lawyers, or, to be fair, the plaintiffs, since the right to recover damages is a consumer-rights issue. He proposes ways to ease the burden on doctors without capping awards. But the doctors are holding out for the Republican aim — tort reform, broadly speaking — and limits on jury awards, specifically.

The medical professionals are guessing that they will be able to win a popularity contest with the lawyers. And on the basis of last week’s Star-Ledger/Eagleton Poll, they seem to be guessing right — in the short run at least. The poll found that 62 percent of respondents approved of the doctors’ job action, 82 percent said too many frivolous suits were responsible for the high costs of insurance, and nearly three quarters blamed jury awards or legal settlements.

But today’s harried doctors are a long way from the calm, warm-hearted doctor who made house calls and always had time for a game of checkers with Dad back in the Norman Rockwell past. These days, many people do not even see the same doctor each time they go for an appointment.

So it is doubtful that the public’s loyalty to the medical profession is strong enough to withstand all of the lawyers’ attacks. After all, everyone criticizes lawyers until they believe they’ve been wronged, as the Eagleton Poll also suggested: 45 percent believed people should be compensated in a medical mishap even if the problem was not the doctor’s fault, and 43 did not.

Then there are the insurance companies — only two carry most of the doctors in New Jersey. They are being accused by state officials of gouging the doctors to make up for all the money they’re not making in the financial markets. It is an accusation that has the advantage of being unprovable.

And some readers of the coverage of the doctors’ strike raised yet another question: malpractice premiums are too high compared to what, they wanted to know. Is even $50,000 for malpractice insurance premiums too much for a surgeon who earns $750,000 a year? There are probably people making $50,000 a year who pay close to $3,000 or more in auto insurance in this state, which is about the same percentage of income as the hypothetical surgeon’s malpractice insurance premium. And the guy with two teenage drivers doesn’t get to take his car insurance off his taxes.

Look for more nettlesome questions like this to come up as the Legislature starts getting headaches trying to sort all this out.

Consumer Watchdog
Consumer Watchdog
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