Tort reform will lure more physicians to Hawaii


POSTED: Monday, March 16, 2009

Trial Attorney Marty Fritz's commentary “;Tort reform is not the cure for isle health care problems”; (Star-Bulletin, March 3), says that statistics show that Hawaii had a big increase in licensed doctors; however, he's using figures that include retired and non-practicing doctors. Having a lot of retired doctors registered with the state doesn't help people in need of medical care.

Also, a lot of plastic surgeons won't help a pregnant mother who can't find an obstetrician because OB/GYNs are only practicing gynecology now.

If you can't find an orthopedist, a basic bone setter, on the Big Island or Maui, and need to get yourself to Queen's Medical Center in Honolulu, common sense says we have a doctor shortage. Ask the Maui fellow who lost his foot after a motorcycle accident, because it took him eight hours to get to Queen's in Honolulu. Ask another young man from Maui who broke his leg and couldn't get to Queen's fast enough. He lost that leg. That is a doctor shortage.

The Queen's emergency room only has two orthopedists on-call; it used to have more than 20. That is a doctor shortage. Kahuku Hospital stopped delivering babies. Wahiawa General Hospital stopped delivering babies. Hawaii Medical Center West stopped delivering babies. That is a doctor shortage.

Fritz says that the number of claims before the Medical Claims Conciliation Panel has declined and that there aren't many cases going to trial. What he doesn't tell you is that the vast majority of claims are settled before they are filed with the MCCP or go to court.

Every plaintiff in a medical liability case says he or she needs to cover costs for medical equipment, increased costs of living, drug costs, in-home nursing, etc., which are all economic damages. And everybody agrees that plaintiffs who have been wrongfully injured should be able to recover these costs because these damages can be demonstrated concretely and a value calculated.

Emotional noneconomic damages, on the other hand, can't be calculated, because they are by their very nature arbitrary. There are no standards, therefore awards are based on emotion; sympathy for the plaintiff and anger at the doctor. If an attorney can generate more anger at the doctor, the emotional damages are higher.

Since there are no standards in Hawaii, individuals with similar injuries get paid different amounts or nothing at all. Since the award could be $1 million or $10 million, everyone fights as hard as they can. If economic damages are made clear under the law, then the proper award for the plaintiff can be calculated. There might still be some disagreement, but the case can be worked out and settled much quicker and the injured person can get paid. Plaintiffs can get appropriate compensation through economic damage calculations.

We can't wait any longer. We need serious change now. Medical law reform is the only thing that has proven to attract doctors to a state. We need to have a system that gets a malpractice victim's actual costs covered by focusing on confirmable, measurable economic damages, and by placing limits on the recovery of things that can't be measured

Legislators are considering medical malpractice reform during this session. Proponents can write their legislators and ask them to support HB 1784. This bill recently passed the House and is now pending before the Senate Health Committee. We don't need more lawyers making more money in the current system; we need more doctors to care for all of us.


J.P.Schmidt is Hawaii state insurance commissioner.