Tort reform worth trying


POSTED: Monday, September 14, 2009

Some state legislators in Hawaii ask every session for limits on medical malpractice awards while others block the proposal to defend patients' right to sue. Both sides of the issue should take the opportunity offered by President Barack Obama to create a pilot project to test other approaches.

In this year's session, the state House approved a bill that would have created a commission to decide on a cap for noneconomic damages in malpractice lawsuits, but the Senate rightly let the bill die. Hawaii has a $375,000 cap on awards for physical pain and suffering, but judges and juries have no limit on awards for mental anguish, disfigurement and loss of enjoyment of life, which is what plaintiffs' lawyers ask.

“;I don't believe malpractice reform is a silver bullet,”; Obama told Congress last week, “;but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.”;

Defensive medicine consists of doctors ordering extra tests, procedures and visits to reduce their legal liability.

President George W. Bush proposed giving grants to states for projects aimed at curbing medical malpractice lawsuits but never implemented it. Obama endorsed the idea and said he would direct Kathleen Seberlius, his health and human services secretary, to provide funding for such state projects.

Medical mistakes are estimated to cause 44,000 to 98,000 deaths a year. At the same time, high prices for medical malpractice insurance coverage is blamed for raising the price of health care.

Two ways have been suggested in dealing with the issue without capping awards. One is known as “;early disclosure,”; or “;Sorry Works,”; in which doctors admit their mistakes, apologize to families and make restitution through mediation. That has been adopted by hospitals in Michigan, Minnesota, Kentucky and other states.

The other notable alternative requires the potential plaintiff to put the case before an expert or a panel to stop frivolous cases from proceeding to court. That has been adopted in Florida, Georgia and Illinois.

Tennessee adopted that approach last year and its number of malpractice cases has decreased by 69 percent. Its insurance premiums are expected to drop this year by 2.5 percent.

The nonpartisan Congressional Budget Office estimated last year that limiting medical malpractice awards would reduce health care spending by less than 0.5 percent.

However, in legislative testimony this year, the doctors' Hawaii Medical Association maintained that the average American family spends an additional $1,700 to $2,000 a year in health care costs when including the cost of defending malpractice cases, paying compensation and covering other administrative costs.