Tort reform is not the cure for isle health care problems


POSTED: Tuesday, March 03, 2009

Big Island doctor Doug Hiller's attack on the legal profession and patients' rights (Star-Bulletin, March 1) contains a number of outrageous statements.

For example, Hiller writes, “;There is absolutely no evidence that huge awards are actually associated with real malpractice.”;

Tell that to the parents of an infant boy who was given carbon dioxide instead of oxygen at birth at Tripler Hospital, rendering him totally disabled for the rest of his life. Does the award in this case signify no evidence of real malpractice?

Ask the family of Big Island minister Arturo Iturralde, who went in for back surgery and came out with a screwdriver in his back instead of a titanium rod. Dr. Robert Ricketson was hired as a spinal surgeon at Hilo Medical Center in spite of several malpractice lawsuits against him on the mainland and a history of drug abuse that caused him to lose his license in Texas.

Iturralde was crippled and died after suffering horrible pain. His family won a substantial award, but not a dime has been paid by either Ricketson or the hospital.

Would placing caps on malpractice awards help these and other victims of a doctor's mistakes? The debate over so called “;tort reform”; revolves around allegations that doctors are fleeing Hawaii due to an explosion of mostly frivolous malpractice claims, lawsuits and trials.

The numbers tell a different story.

In the past eight years, according to figures compiled by the Department of Commerce and Consumer Affairs, Hawaii has seen a nearly 30 percent jump in the number of doctors (3,044 in 2000 and 3,917 in 2008).

In contrast, medical malpractice lawsuits have declined. Most people are not aware that before a lawsuit can be filed, Hawaii law requires that a claim must first be submitted to a panel called the Medical Claims Conciliation Panel. Even before a claim can be filed with the MCCP, a claimant must jump through a merit screening process by obtaining a “;certificate of consultation”; from a doctor in the same specialty field who finds that the claim has merit.

There is also no explosion in litigation. Just the opposite. The number of claims filed before the MCCP panel dropped from 173 in 2001 to 100 in 2008. Only two claims were found to be frivolous. Similarly, the number of medical malpractice lawsuits filed in Hawaii dropped from 55 in 2002 to 41 in 2007. In the past five years, only 11 cases went to trial.

The critics of the current system say instituting caps on malpractice awards will bring specialists to rural areas on Oahu and the neighbor islands. States like Texas placed caps on malpractice awards and continue to have the same problem attracting physicians to rural areas.

Instead of using their energy to strip patients of their rights, the medical industry ought to push for real solutions to get doctors to practice in medically underserved areas. Other states have attempted to tackle this problem by beefing up medical school slots and creating special programs for students who want to practice in rural areas, giving tax breaks and subsidizing rural health clinics.

Hiller's solution hurts patients harmed by a doctor's mistakes and subjects taxpayers and victims' families to paying for those mistakes. More important, his solution does nothing to improve patient safety or to keep doctors in the rural areas of Hawaii. Obviously, doctors do not like being sued; however, our legal system is one built on personal responsibility. When a professional makes an error and someone is grievously injured, that professional is responsible for the reasonable costs and damages caused by the error.



Collin M. “;Marty”; Fritz is legislative chairman of the Hawaii Association for Justice (formerly Consumer Lawyers Hawaii).