Rules for medical malpractice lawsuits need review

THE ISSUE Proposals to change the rules for medical malpractice lawsuits has died in this year's Legislature.

PROPONENTS of major changes in regulating medical malpractice claims have been denied a hearing in this year's Legislature, despite concerns that doctors in high-risk specialties are leaving the state. Those concerns are legitimate, and legislators should give thorough and fair consideration of proposals to change the system in next year's session.

The proposals would put a $500,000 cap on non- economic damage awards and eliminate or restrict the "deep pocket" rule -- holding each defendant potentially responsible for the entire award, regardless of the defendant's percentage of responsibility for the harm. "The current system is failing and is simply unacceptable," Governor Lingle said in endorsing the legislation.

Hawaii now has a $375,000 cap on awards for physical pain and suffering, but it is farcical. Plaintiffs' attorneys skirt the rule by asking juries to award larger amounts to compensate their clients for such afflictions as mental anguish, disfigurement and loss of enjoyment of life.

Medical malpractice awards have resulted in skyrocketing insurance premiums for many doctors. J.P. Schmidt, the state insurance commissioner, said some doctors in some specialties pay premiums as high as $100,000 a year.

Obstetricians pay the most, and the Hawaii bill would put the $500,000 limit on noneconomic damages in cases against obstetricians, obstetrician-gynecologists and trauma care providers. In all other areas, health-care providers would be liable under the deep-pocket system only when their negligence accounts for at least 25 percent of the damage.

California has a $250,000 lid on awards for all non- economic damages, and the Bush administration has proposed such a cap in all federal cases. However, California malpractice insurance premiums rose six-fold in the 13 years after the 1975 law took effect and settled down only after voters required state approval of premium increases, regulated insurer profits and ordered refunds of excessive profits.

Another possible approach, proposed by Lingle three years ago, would be to establish a system of halting frivolous claims before they reach court. The Hawaii Medical Claims Conciliation Panel now reviews complaints and identifies meritless cases but has no power to prevent lawsuits. Lingle proposed a panel of lawyers and doctors to play that role.

The issues are complicated and deserve the Legislature's full attention. Senate Health Chairman Rosalyn Baker says there is no "compelling reason to change the system when there is no information about the desired result." Rep. Sylvia Luke, chairwoman of the House Judiciary Committee, shelved the bill without a hearing, saying, "I think it's a bigger issue. We need to pull all that together."

Luke is vulnerable to allegations that she is merely acting for the benefit of Cronin Fried Sekiya Kekina & Fairbanks, where she is an attorney. The firm is perhaps the most prominent in the state in handling personal injury cases. She should step aside from deciding by herself whether to consider this issue.