The conflict between physicians and trial lawyers won't be resolved by a dollop of tort reform combined with larger doses of "rate stabilization" and medical discipline ["Maryland's Malpractice Mess," editorial, July 6]. As chairman of a governor's commission on this subject reporting in 1984 and vice chairman of a 1985 task force that gave rise to the changes that kept a lid on this problem for 20 years, I cannot endorse this approach.
The mid-'80s proposals led to legislation that imposed a cap on pain-and-suffering awards, with inflation adjustments; halved the number of lawsuits by introducing a "certificate of merit" procedure; and eliminated a duplicative arbitration system. Obstetricians were protected by shortening the statute of limitations in actions by minors from 23 years to 16. The commissions also sought to limit the double recoveries made possible by failure to subtract other insurance re- coveries from malpractice awards.
But not all of the changes lasted. The Court of Appeals found the change in the statute of limitations "unreasonable" without discussing the findings that led two state commissions to consider it reasonable. The restriction on double recovery was not fully implemented. And in 1994 trial lawyers secured an in- crease in the pain-and-suffering cap, which was automatically adjusted for inflation.
Predictably, we have a crisis. Efforts to pretend that this is because of uncorrected malpractice by a small minority of doctors is lying with statistics. Most specialties attract few lawsuits; litigation is a problem for high-risk specialties, notably neurosurgery, cardiology and obstetrics. The lawsuits fall on the competent as well as the incompetent. Nearly all births are attended by obstetricians, and few babies are born perfect. Most deaths take place in hospitals, and some of the aggrieved lash out at any human target, particularly one that is well insured and with which jurors find it hard to identify. Justifiable awards are frequently inflated by estimates of future medical expenses based on worst-case scenarios.
Maryland should provide for an offset against awards of recoveries from other insurers. It should require, in connection with lawsuits for birth injuries brought more than five years after the event, that negligence be proved by clear, convincing evidence. It should allow awards representing future medical costs to be bonded off by providing a health insurance policy so that actual costs, not extravagantly estimated ones, are reimbursed. Proposals should be rejected for the use of public funds to enrich the trial bar.
GEORGE W. LIEBMANN
We should be "assigning blame" to Guy Cabot and Jane Marshall for adding confusion to the medical liability debate [letters, July 9].
Mr. Cabot cited a study showing that payouts have remained flat for 30 years. While the number of paid claims remains somewhat constant, his source, the National Practitioner Data Bank, reports a record payout of $4.9 billion in 2003, up 60 percent from a decade earlier. The writer also referred to a study by Weiss Ratings Inc., but it was discredited by its main data sources shortly after publication.
Ms. Marshall said that Texas malpractice insurers are raising their premiums. In fact, the Texas Medical Liability Trust, a physician-owned entity that is the largest insurer in the state, reduced rates by 12 percent. And GE Medical Protective, a commercial insurer, was prevented from raising rates by state regulators.
She also said that California's success was the product of insurance reform, but the reason rates did not subside immediately was because insurers were waiting for the state's Supreme Court to rule that the caps on non-economic damages were constitutional; only then could actuaries take the law into account. Total malpractice premiums have risen by "only" 245 percent since 1975 in California, compared with 755 percent in the rest of the country.
Malpractice insurance rate adjustments are subject to intense scrutiny by state regulators after independent actuarial justification. Moreover, as most physicians (more than 60 percent) are insured by doctor-owned or -operated medical liability companies, why would they be so quick to raise their own rates?
Physician Insurers Association of America