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Read Making a Killing

home / healthcare / in the media

The Seattle Times
Feb 21, 2003

by Carol M. Ostrom, Seattle Times staff reporter

Pain vs. premiums: Who will pay the price in malpractice debate?

Doctors say soaring insurance rates drive them out of high-risk specialties; patients argue lawsuit limits would leave some vulnerable to substandard care.
Jennifer Rufer is a young woman from Spanaway who lost her childhood dream of becoming a mother when doctors, misdiagnosing her with cancer, cut out her uterus and part of a lung and dosed her with chemotherapy.

Bob Pringle is a middle-aged doctor from Mount Vernon who lost the work he has loved for 20 years -- delivering babies -- because he couldn't afford huge increases in his malpractice premiums. Discouraged and saddened, he worries about his patients in Skagit County, who have fewer choices of doctors.

Rufer, the injured patient, and Pringle, the financially strapped doctor, have taken different sides in an increasingly contentious debate over what to do about the rising cost of medical-malpractice insurance. Recently, each one traveled to Olympia, where legislators are considering far-reaching reforms that Rufer and Pringle believe would critically change the lives of patients and
doctors.

The state Senate is now considering legislation to limit jury awards for "pain and suffering" and other non-economic damages in medical malpractice cases to $250,000, similar to a law passed in 1975 in California, and more recently in more than 20 other states. The bill also would limit fees collected by patients' lawyers, and would make malpractice harder to prove.

To do this would require changing Washington's Constitution, done only with approval of two-thirds of both houses and a simple majority of voters.

All around the country, the cost of malpractice insurance has galvanized doctors, who have staged work slowdowns and rallies. In Pennsylvania, doctors called off a threatened walkout only after the governor proposed a $220 million bailout. Here, doctors have buttonholed their legislators, warning that steep increases in malpractice costs are creating serious shortages in high-risk specialties such as obstetrics. Already hammered by cuts in reimbursements from private and public insurers, doctors say they can't afford the new rates. President Bush, deriding "runaway juries" and "frivolous lawsuits," has called for national limits on jury awards.

Like many doctors in the state, Pringle, an obstetrician-gynecologist, received a whopping increase in premiums this year. To deliver babies, he would have paid $81,000 for $2 million in coverage -- $30,000 more than he paid last year.

Pringle believes juries give big "sympathy" awards to patients, even when doctors did nothing wrong. He notes awards in New York last year: $94.5 million, $91 million and $80 million, all involving deliveries of babies with cerebral palsy, which some researchers say is a condition most often not preventable by Ob-Gyns. "Juries can decide anything that a lawyer can talk them into," he says. "I think every doctor in this state feels under great peril practicing
medicine."

Injured patients, lawyers and consumer groups say big awards are rare and aren't what drives premiums.

Instead, they say, the cause is bad insurance-company investments and a system that doesn't weed out bad doctors. Insurance reform -- not limits on juries -- is what's needed, they argue.

At a state Senate committee hearing last month, Bob Guile told a room full of strangers how his wife's spinal cord was cut during routine back surgery, causing numbness, bowel and bladder problems. "We live with this nightmare 24 hours a day. ... Our lives are curtailed by that injury," Guile told the senators. "Please do not victimize us victims a second time."

In the Midwest, a 46-year-old woman told U.S. Senators of having both breasts removed after a cancer diagnosis. Later, she was told her pathology slides had been mixed with another woman's, and she didn't have cancer, after all.

Such injuries, including those that lead to pain, the inability to have sex, the death of a baby or loss of enjoyment of life, often don't involve "economic" damage such as lost wages or the need for ongoing medical care.

Even so, the damage can be great, as Jennifer Rufer and her husband, Dave, found.

After repeated false readings on tests, doctors concluded Rufer, then in herearly 20s, had cancer. They proceeded with surgeries and chemotherapy. Afterward, Rufer could still work; she didn't need ongoing medical care. But she had lost the most precious thing in her life: the ability to have children.

Paul Luvera, one of her lawyers, read from her diary during the trial: "It's the saddest feeling I've ever experienced. ... I grieve for me and Dave and all my unborn children. ... I cry all the time."

The jury awarded $16.2 million to Rufer and her husband -- $15.7 million of that for non-economic damages. The defendants, a laboratory and local medical center, have appealed.

Caps on non-economic awards would make lawsuits extinct in all but slam-dunk cases, lawyer Reed Schifferman told legislators. The result: immunity for most doctors who do harm. "The thing to do is to get rid of doctors who shouldn't be practicing," he argues.

Laws capping non-economic damages amount to "class warfare" on women, elderly and low-income patients, the least likely to have high wages, says Jamie Court of The Foundation for Taxpayer and Consumer Rights in Santa Monica, Calif.

"I'd like legislators who support giving (Rufer) no more than $250,000 not only to recognize that she wouldn't get an attorney, but be willing to undergo massive doses of chemotherapy and be castrated or sterilized in exchange for a check for $250,000."

Legislators have plenty to weigh: doctors' complaints, victims' rights and the potential squeeze on patients' access to care.

In the Senate, Alex Deccio, R-Yakima, chairman of the Health and Long-Term Care Committee and a former insurance broker, drafted the bill to cap non-economic malpractice awards. Its provisions also have been folded into a larger liability-reform bill being heard this week by the Senate Judiciary Committee.

The House begins hearings today on a large package of bills addressing underlying issues such as medical errors, use of expert witnesses at trials and time limits for patients' lawsuits -- but not seeking caps.

"One thing that's uniting the Legislature -- House and Senate, Democrats and Republicans -- is that there is a real problem," says Rep. Shay Schual-Berke,D-Normandy Park, a retired cardiologist and co-chair of the House health-care committee.

"Where the fight will come is over the solutions."
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Carol M. Ostrom: 206-464-2249 or costrom@seattletimes.com


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