Hawaii urgently needs caps on malpractice claims
Your Feb. 8 editorial "Malpractice insurance needs tighter controls" highlighted an important issue in Hawaii. It's unfortunate that the opinion was based on faulty information.
The assertion that California's law capping noneconomic damages (e.g., emotional distress) did not work is simply not true. This is a complete misrepresentation that those with a vested interest in the current lottery/litigation system repeat over and over again.
The facts are these. The California law was passed in 1975. It was immediately challenged in court, put on hold, and thus had no effect until the California Supreme Court upheld it a decade later. Thereafter, premiums decreased and the malpractice market stabilized.
California's premiums have remained significantly lower than other states with similar characteristics for litigiousness, pay and population. For instance, in 2004 an obstetrician in Los Angeles paid $66,100, in New York $117,956, in Detroit $164,934, in Miami $277,242 in malpractice premiums before they could even open the doors of their practice.
Today's lack of certain medical specialists will worsen if we do not take immediate steps to cap noneconomic damages in medical lawsuits.
Does anyone really think it's OK for a person suffering with a broken leg on Maui or the Big Island to have to fly to Oahu for treatment at Queen's Medical Center? Maui has 120,000 and the Big Island has 150,000 residents. It might be understandable that it's difficult to get doctors in rural areas like Hana or Pahala, but not being able to find an orthopedist anywhere on Maui or Hawaii is unacceptable.
Oahu is poised at the edge of disaster as well. At one point, Queen's Medical Center had 20 orthopedists on call. Now they have only two. Those two will wear out at some point, particularly with the added pressure of patients being flown in from the neighbor islands.
Babies are no longer delivered at Kahuku Hospital, Wahiawa General Hospital and Hawaii Medical Center-West. Many ob/gyns in Hawaii have quit doing obstetrics and are only providing gynecology services as reported in your Feb. 5 article "Isle doctors lobby for tort reform."
The article also noted that Texas had a net gain of 163 obstetricians after passing a law with caps on noneconomic damages. At least Texas is headed in the right direction, while Hawaii is headed for a medical crisis.
We need some serious change now.
Your proposed solution for tighter controls on malpractice insurance makes no sense. All the malpractice insurers for hospitals have left Hawaii. When the last one left, Kahuku Hospital had to go to an out-of-state insurer and its annual premium went from $70,000 to $460,000, while the state hospitals' premium went from $1.5 million to $4.9 million.
For doctors' insurance, all we have left are a couple of nonprofit doctors' reciprocals (an association of doctors providing coverage to their members) and a doctors' trust. Those insurers already must submit rates for my approval. Throttling them with more regulation and driving them out of the state, too, will not help anyone.
The clear solution is to reform the legal system so it is more rational. Some emotional distress damages are warranted, but not a blank check with zero standards. It is impossible to set a value on emotional distress, so there are no standards, no certainty and no predictability, which are the essential characteristics of a rational legal system.
We need to better describe the economic damages and make sure the injured get all the economic damages they need and deserve. The bill I submitted this year clarifies economic damages and requires that all such damages be awarded.
This solution has worked in other states, where premiums came down and doctors returned, because the atmosphere for practicing medicine improved. Doctors are leaving Hawaii for states where the legal system is rational and where they will be treated fairly.
We need doctors to care for the citizens of Hawaii. We must reform our legal system and make it more rational before we lose more doctors, turning Hawaii's medical crisis into a medical catastrophe. Please contact your legislators and tell them we need doctors.
J.P. Schmidt is Hawaii's insurance commissioner.