[ OUR OPINION ]

Malpractice cure needs
dose of bipartisanship

THE ISSUE Partisan politics is likely to result in the death of proposed medical malpractice insurance award caps in the U.S. Senate.

LEGISLATION aimed at placing caps on medical malpractice awards appears doomed in the current Congress. Senators have taken sides with doctors or insurance companies blaming each other for the high insurance premiums that have forced some doctors to leave the profession. A more thorough, bipartisan examination is needed before Congress tries again to perform surgery on this growing problem.

One-year increases in medical malpractice premiums for physicians in major specialties averaged 30 percent last year. In Hawaii, yearly premiums averaged $7,156 for internists, $25,756 for general surgeons and $42,928 for obstetricians, and those are fairly low compared with most other states. Obstetricians in some states pay annual premiums of more than $100,000.

The Bush administration has proposed that malpractice awards be limited to $250,000 for "non-economic" compensation, or pain and suffering caused by such maladies as blindness, brain damage, loss of fertility and disfigurement. It also would limit punitive damages to $250,000 or twice the amount of economic compensation, such as medical costs and lost wages, whichever is larger. The House has approved the measure, but the Senate is deadlocked.

Sen. Dianne Feinstein, D-Calif., has supported the proposed federal caps, which are based on a California law enacted in 1975. She credits her state's law with keeping premiums below the national average.

However, malpractice premiums in California tripled in the first dozen years after the law took effect. They stabilized only after California voters approved a 1988 law that froze premiums for four years and then required state approval of premium increases, regulated insurer profits and ordered refunds of excessive profits.

Plaintiffs' attorney Robert Merce of Honolulu blames insurance companies for "putting the squeeze on doctors" by raising premiums to cover the companies' investment losses in the stock market. "The premiums track the market," Merce says. "Premiums do not track judgments and judgments are not going up significantly anywhere."

Hawaii has a $375,000 cap on malpractice awards, but only for physical pain and suffering compensation. Plaintiffs' attorneys can and do skirt the limit by asking jurors for compensation for mental anguish, disfigurement and loss of enjoyment of life.

The Florida Senate last month approved a measure that would put caps at $500,000 for pain and suffering, but the limit would jump to $2 million for such malpractice consequences as death, severe and permanent brain damage, coma, blindness, mastectomy and permanent vegetative state. The Florida House approved the California-patterned $250,000 limit, but Gov. Jeb Bush, who supports the House version, said he is willing to compromise.

"I don't have a 'my way or the highway' mentality," the Florida governor said, taking an approach from which his brother could learn.