Malpractice award cap in play

A key Legislative panel is hearing testimony on a bill favored by doctors

A proposed change to Hawaii's medical malpractice law is taking center stage at the Legislature, the result of doctors' pleas that lawsuits and higher insurance premiums are driving an increasing number of specialists out of the state.

The 1,300-member Hawaii Medical Association is lobbying for a bill that would cap the noneconomic damages in a malpractice suit at $500,000. Currently there is no cap on noneconomic damages.

The House bill has passed the health and consumer protection committees and is scheduled for a final hearing today in the House Judiciary Committee. It is the last committee the bill must pass before it can cross over to the Senate.

At issue is whether malpractice suits can be blamed for the increased costs of medical liability insurance, which has risen substantially for many specialists who care for high-risk patients, particularly in emergency cases.

The threat of malpractice suits and rising insurance premiums is just part of the reason doctors say they are closing their Hawaii practices, particularly in rural areas. For years, they have complained about decreasing reimbursements from government and private insurance carriers as well as increased pressures of the job.

Rep. Tommy Waters, (D-Lanikai-Waimanalo), chairman of the House Judiciary Committee, said that there are many unanswered questions including how will capping noneconomic damages impact medical malpractice insurance rates and encourage more doctors to work in rural areas.

"On the other side of the coin, are we denying victims access to the courts and a remedy by capping this?" he said. "Will caps on pain and suffering and noneconomic damages lower premiums, which will keep doctors in the state? -- that's the big question."

Bob Toyofuku, lobbyist for the Consumer Lawyers of Hawaii, opposes the bill. "The amount of payout in 2004 and 2005 is higher than years before, that's because there have been horrendous cases," he said.

Toyofuku said that capping noneconomic damages will not solve the problem of doctors leaving the state or encourage more of them to take on-call responsibilities at hospitals and work in rural communities.

"And it's not going to reduce medical errors," he said. "The dots don't connect."

While not all doctors pay high malpractice insurance premiums, rates for specialists such as general surgeons, neurosurgeons, orthopedics and obstetrician-gynecologists have increased by 58 percent since 2001 to an average $52,604 last year, according to the Medical Insurance Exchange of California, Hawaii's largest malpractice carrier covering 1,100 local doctors.

"They're the ones who are most vulnerable to lawsuits," said Paula Arcena, Hawaii Medical Association executive director.

While the amount paid out for malpractice suits has risen in recent years, the number of malpractice claims has steadily dropped since 2001, when 173 claims were filed, compared to 115 claims filed last year, according to a report by the Medical Claims Conciliation Panel, a third-party panel created by the state in 1976 to screen out frivolous lawsuits.