An article April 22 about tort reform misstated the legal doctrine of joint and several liability in medical malpractice lawsuits won by the plaintiff. The principle holds all defendants liable for an award regardless of the degree of fault. Thus, a defendant found 10 percent liable could pay an entire award even if a co-defendant was 90 percent responsible but unable to pay that share. (Published 4/24/03)
Doctors fighting for tort reform in the District have created a false sense of crisis surrounding medical malpractice insurance rate increases, according to a study to be released today by a national consumer group that is against medical liability legislation Mayor Anthony A. Williams (D) is considering.
Lawyers and researchers at the District-based Public Citizen concluded that, contrary to the impression created by doctors, in the past decade there have been significant declines in the number of malpractice suits filed in District courts and the total cost of liability insurance premiums paid in the city.
Those in favor of the legislation lambasted the report yesterday. The head of the Medical Society of the District of Columbia said it was riddled with inaccuracies, and the president of the D.C. Hospital Association said it failed to recognize that the District is a regional health care hub.
The report's authors said they drew their conclusions after reviewing private and public documents. The report says the city has far more doctors per capita than any state, suggesting that rising rates are not driving doctors out of town. The researchers say the average doctor's malpractice premiums are lower in the District than the average doctor's premiums in 46 states, including Maryland and Virginia.
In addition, the report says, there is little evidence that there are many "frivolous" lawsuits or that D.C. juries hand out money in an irrational or unpredictable way, as critics often claim. Most malpractice cases are settled before trial, and in those that aren't, the vast majority of juries find in favor of the health care provider, experts not connected with the study say.
Frank Clemente, director of Public Citizen's Congress Watch division, said the culprit for increased insurance rates is poor performance on Wall Street. When the markets fall and cut the insurers' investment income, he said, companies raise rates to make up for losses and ward off bad risks.
"It is erroneous to pursue solutions that have nothing to do with the cause of the problem," Clemente said. "If you make mistakes and commit negligence, you should be held accountable."
But health care providers in favor of such legislation vehemently disputed Public Citizen's findings. The president of the D.C. medical society, rheumatologist John Lawson, called the report "manipulation of numbers" and "specious" and said it relies on inaccurate figures for the population of physicians and patients. "It leaves me apoplectic," he said.
Lawson said higher insurance rates prompt young doctors to avoid the city and cause veterans to set up suburban satellites to which they could move if the District atmosphere continued to deteriorate, he said. Lawson has a Chevy Chase office. His annual malpractice insurance costs $19,000, but some specialists, such as obstetricians, must pay $108,000, he said.
Robert Malson, president of the D.C. Hospital Association, said the report left him "aghast" because it did not touch on the District's regional pressures. Non-economic damages available to plaintiffs -- pain and suffering awards -- are capped at $620,000 in Maryland, and total damages are limited to $1.65 million in Virginia.
"This is one market in three jurisdictions, and the District at all economic levels has to be competitive," Malson said. "If Maryland and Virginia have some limitations on malpractice and the District doesn't, you end up with these outrageous jury decisions in the District that can't happen in those places."
Drafts of tort reform legislation prepared by aides to Williams have circulated among District health care leaders as a prelude to the filing of a bill.
The latest proposal to make the rounds includes a $250,000 ceiling on pain and suffering awards, limits on plaintiff attorney fees and the elimination of joint and several liability, a legal principle that holds all defendants liable for a jury award even if they were not at fault.
"It's definitely a step we ought to take, and there's no reason to wait until things get worse," said the mayor's press secretary, Tony Bullock. "We can't pretend we're immune from the things happening in other states. We need practitioners to be viable business people."
Sharon Baskerville, executive director of the D.C. Primary Care Association, an advocacy group for clinics that treat low-income residents, said the city needs to strengthen its work policing bad doctors as a primary step in preventing malpractice.
"About 5 percent of physician errors cause the majority of awards," she said. "In the District, we're not doing a good job of oversight with physicians who are committing patient errors. It seems to be a very small number of physicians who cause the gravest problems."
Several officials involved in lobbying for Williams's proposal said the council has resisted similar proposals in the past, and many members are attorneys or are aligned with personal injury lawyers.
D.C. Council member Sharon Ambrose (D-Ward 6), chairwoman of the committee that would take up the bill, said, "I would say the chance of it passing is quite slim."
A similar congressional proposal passed the House but has run into trouble in the Senate. Clemente said, "What's so disappointing about Mayor Williams is that you have a Republican Congress that can't get majority support because the evidence isn't there." He added, "When they are faced with a victim who has been horribly disfigured, paralyzed or brain damaged, Congress would oppose a one-size-fits-all cap."
Clemente said his group has done similar analyses of nine states, but the researchers were most concerned about the District.
"We worked a bit harder in D.C. because it's where we live and work," he said. "It would be an embarrassment to us if something like this passed the City Council. It's right in our backyard."