Gov supports malpractice law reform
Gov. Linda Lingle has added her support in pressuring the Legislature to make changes to the state's medical malpractice laws.
"The current system is failing and is simply unacceptable," Lingle said in a press release yesterday. "The future vitality of Hawaii's health-care system depends upon responsible, sensible medical malpractice tort reform."
But the representative who heads the House Judiciary Committee -- and who is also an attorney with a personal injury firm -- says it is too late in the session to make any changes to the law.
Rep. Sylvia Luke (D, Dowset Highlands-Pacific Heights-Pauoa-Punchbowl), an attorney with the personal injury firm of Cronin Fried Sekiya Kekina & Fairbanks, has held the bill without a hearing.
Luke said last week that the bill (SB 3279, SD 2, HD 1) tries to address access to care and cost of medical malpractice insurance premiums, but she does not feel it does the job.
"I think it's a bigger issue. We need to pull all that together," she said, adding that she will look at it before the next session.
But Lingle said the pending legislation could help keep doctors in Hawaii by stabilizing medical malpractice premiums. The bill would:
» Place a $500,000 cap on noneconomic damage awards in medical tort actions against obstetricians, obstetrician-gynecologists and trauma care providers.
» Establish a sliding scale for attorney's fees based upon the judgment or settlement.
» Eliminate joint and several liability for economic damages.
» Allow joint and several liability for noneconomic damages where a health-care provider's degree of negligence is 25 percent or more.
The Hawaii Medical Association has been running newspaper ads encouraging residents to call their legislators to support changes to the medical malpractice law.
"Will your doctor be there ... for your medical emergency?" one ad asks readers.
Isle doctors, particularly specialists, are giving up their practices because of increased medical malpractice insurance costs, and some obstetricians have stopped delivering babies because of liability risks, the ads say.
Leaders at the University of Hawaii's John A. Burns School of Medicine have told legislators that medical students are hesitant to go into "high risk" specialties for fear of being sued.
"For the safety of our residents, I strongly urge the Legislature to take action this session to provide the people of our state with the medical services they need and deserve," Lingle said.
Luke said the intent behind the reform measure is to allow people to get medical services, especially in rural areas and on the neighbor islands, which are having a hard time attracting doctors.
"The response is because medical malpractice premiums are so high. ... If that's the intent, we need to address it in several ways," she said. "We need to have some type of mandatory language that requires insurance premiums to go down."
Senate Health Chairwoman Rosalyn Baker (D, Kapalua-Kaanapali-Lahaina-Maalaea-Kihei-Makena) expressed similar concerns when a House bill for tort reform reached her committee earlier in the session. "I can't see a compelling reason to change the system when there is no information about the desired result," she said at the time.
Health-care providers and institutions argue that Hawaii is losing specialists because of the high cost of medical malpractice premiums and risk of lawsuits, and that these problems are keeping doctors from coming here or practicing in rural areas.
Malpractice insurance premiums for some specialists are as high as $60,000 to $100,000 a year, Insurance Commissioner J.P. Schmidt said recently.
Schmidt and other tort-reform advocates point to California's Medical Injury and Compensation Reform Act, which they say has stabilized its legal system, reduced medical malpractice premiums and made them more predictable.
Bert Sakuda, a partner in the same law firm as Luke, and Robert Toyofuku, who represents the Consumer Lawyers of Hawaii, have been major opponents of tort reform.
"The emphasis seems to have always been on the legal system, attorneys and insurance over these past years," Toyofuku testified at the last House hearing on the bill. "The emphasis should be on the injured patients, the medical system and what is causing medical errors, medical malpractice and injuries to patients."
Toyofuku contends caps on noneconomic damages "are unfair, arbitrary and unnecessary" and that tort reform does not significantly reduce premiums.
He also notes that the number of medical malpractice claims filed in Hawaii fell from 173 in 2001 to 105 last year. Tort-reform supporters say while fewer claims are filed, the awards are larger.
Luke said, "Even if we put caps on general damages and limit people's ability to file lawsuits, it doesn't translate to doctors having to pay less in premiums. ... If we are going to take away from victims' rights, there has to be some assurance the benefit will go to the doctors."