You can get a pretty good sense of the problem Sen. Orrin Hatch (R-Utah) is trying to solve just by thumbing through recent newspaper clips:
A Baltimore neurosurgeon announces that he will retire (at age 62) rather than raise fees to cover his skyrocketing malpractice insurance. His premiums just jumped from $9,000 a year to $44,000.
A Washington physician says he is considering closing his practice because of a 380 percent jump in his malpractice insurance premiums. Although he has never been sued, his premiums, which came to $15,817 in 1984, leaped to $57,817 for 1985.
Thirty angry doctors converge on the Maryland state capitol to protest a 135 percent increase in malpractice premiums. And 3,000 doctors demonstrate at the Illinois state capitol. Medical malpractice insurance, particularly for obstetrician/gynecologists, is soaring, in major part because of huge jury awards against physicians charged with malpractice. Some doctors are going out of business; some are passing along the costs to their patients, and some are subscribing to services set up to screen out prospective patients who have filed malpractice suits.
Says Hatch, chairman of the Senate Labor and Human Resources Committee: "Access to affordable health care services for the American public may be seriously jeopardized unless a prescription is written to treat malpractice litigation fever." With the blessing of the medical community, he has outlined a set of proposals he hopes will reduce the number and cost of malpractice suits.
Hatch acknowledges the existence of medical malpractice, but he thinks the problem may be more effectively handled by strengthening the ability of state boards to weed out incompetent doctors. His proposal would also limit attorneys' contingency fees, put a $250,000 cap on pain-and-suffering awards and allow large damage awards to be paid in installments.
But it isn't just the size of the awards (or the share that goes to lawyers) that Hatch finds so disturbing. Patients -- which is to say all of us -- worry about what it does to doctor-patient relations when doctors are forced to treat us as prospective adversaries. We worry that we are required to undergo needless tests and referrals, not because our doctors think the tests are indicated but because they don't want to risk being sued if the obvious diagnosis turns out to be the wrong one. We worry when women who didn't want to be pregnant, or who delivered abnormal children, sue their doctors for "wrongful birth."
The temptation is to shout "Stop it!" to those litigious souls who are driving up the cost and complexity of our own medical care. But doctors do sometimes mess up, and we aren't sure we want anybody to take away our right to sue the guy who left the sponge in our abdominal cavity or let our cancer get out of hand because he was careless in his diagnosis.
And yet it is obvious that something has to be done; the problem is clear enough. It's the answer that's so difficult: how to protect the good doctor who makes a rare error from predatory lawyers while leaving us free to sue the pants off the lazy, careless or incompetent physician.
The Hatch proposals may help, but there's still plenty to be done.