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Tort reform bill good for lawmakers, not for health care


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POSTED: Friday, March 13, 2009

AFTER struggling for years over the question of whether to cap medical malpractice awards, state legislators are considering the same maneuver they used to obtain huge salary increases for themselves. A bill passed by the House would create a commission to decide on a cap for noneconomic damages, letting legislators off the hook. The bill should be rejected.

Hawaii already has a $375,000 cap on awards for physical pain and suffering, but plaintiffs' lawyers instead ask juries to award larger sums as compensation for mental anguish, disfigurement and loss of enjoyment of life. The strategy has been successful.

In past years, proponents of tort reform have said a cap is needed to control rising insurance premiums and halt the departure of doctors from Hawaii to the mainland. However, state records show that the number of licensed physicians in Hawaii has risen yearly from 3,044 in 2000 to nearly 4,000 this year, and the numbers have increased in each county, according to Robert Toyofuku, representing trial lawyers in testimony to the Legislature.

Like rural areas on the mainland, neighbor islands do struggle to keep specialist physicians, who are most vulnerable to malpractice lawsuits. Medical scholarships rewarding students from neighbor islands who will return home to practice and other incentives should be funded to counter that trend.

Proponents of tort reform have called in the past for copying California's $250,000 cap on noneconomic damages, but opponents have claimed that malpractice insurance premiums fell in that state because of insurance regulation. Insurance premium rates in California remain higher than in Hawaii.

Average insurance premiums are high for Hawaii neurosurgeons ($73,248), orthopedic surgeons ($48,832) and obstetrician-gynecologists ($58,600), but they are higher in California, according to the doctor-owned, nonprofit Medical Insurance Exchange of California, which is Hawaii's largest malpractice carrier. The Hawaii bill's award cap would apply to doctors and osteopathic physicians licensed in the state and board-certified in general surgery.

In a 37-13 vote, the Hawaii House approved a measure that would create a commission headed by the state insurance commissioner and stacked with members of the medical community to decide what the cap on noneconomic damages should be. The California level would be a shoo-in, just as large pay hikes for legislators were guaranteed by a commission controlled by legislative leaders' appointees.

Unlike the California malpractice law, the lid on noneconomic damages to be set would apply only in cases where economic damage awards totaled less than $1.5 million - a perplexing condition. Also, the cap would not apply to cases of gross negligence, undefined by the bill.

The only redeeming part of the bill that passed the House would require doctors to warn patients of the possible adversity from an upcoming “;event”; and inform them afterward of any harm resulting from it.