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Read Making a Killing

home / healthcare / in the media

The Register Guard (Eugene, OR)
Mar 19, 2003

by Tim Christie

Oregon Doctors Push Legislators for Malpractice-Insurance Relief

In Eugene, a 40-year-old neurosurgeon is moving his practice to Idaho because of skyrocketing malpractice premiums in Oregon and a fear that one big lawsuit could put him out of business.

In Reedsport, women must drive 30 miles to Coos Bay to give birth because the town's four family doctors quit delivering babies five months ago when their surgeon relocated and they couldn't recruit another.

In Salem and Washington, D.C., doctors are putting a full-court press on lawmakers to contain trial lawyers and big jury awards.

Doctors blame their rising insurance costs on greedy attorneys who, unhindered by a cap, are seeking bigger and bigger jury awards. Attorneys and consumer groups say arrogant doctors are acting in concert with the insurance industry to escape accountability.

What doctors want is a cap on jury awards for noneconomic damages for pain and suffering. Attorneys and consumer groups counter that the caps are undemocratic and don't work to curb malpractice premiums. What's needed in Oregon, they say, is tough regulation of the insurance industry.

The high-stakes political battle is heating up: In Oregon, a House committee took testimony all last week on a package of tort reform legislation pushed by the Oregon Medical Association. Gov. Ted Kulongoski suggested that the state's insurance company get into the medical malpractice business to help out doctors.

In Congress, the House passed a bill last week that would cap medical malpractice jury awards at $ 250,000.

In the meantime, patients, particularly in rural areas, are starting to feel the squeeze.

More and more family practice doctors and obstetricians in Oregon are getting out of the baby business. It's a high-risk specialty with some of the highest malpractice premiums. Neurosurgeons, neurologists, trauma surgeons and heart surgeons find themselves in similar straits.

Since 1999, 125 doctors have quit delivering babies in Oregon -- representing about 25 percent of doctors providing obstetric care, according to a statewide survey conducted by researchers at Oregon Health & Science University. Nearly half, 48 percent, cited insurance costs and 41 percent said they feared lawsuits.

The survey also found that one-third of the doctors now delivering babies planned to stop within five years. Of those, 59 percent cited the cost of insurance and 43 percent cited fear of lawsuits. Rural doctors were more likely to say they planned quit than those in the Portland metro area.

On the Oregon Coast, the four family physicians at Dunes Family Health Care in Reedsport gave up delivering babies after the town's only surgeon moved out of the area. The surgeon provided backup for the family doctors in case of an emergency C-section.

"Without that backup we had to stop doing OB," said Dr. Robbie Law.

His practice is still doing prenatal care through the first two trimesters, but Reedsport women must drive to Coos Bay to give birth, he said.

Law's office hopes to re-establish OB care at some point, but recruiting a
surgeon is proving difficult, and each month that goes by, "the odds are longer
that my group would take it up again," he said.

Rural communities are "the canary in the mine" for the state of health care in Oregon, Law said. "Things are going badly so the canaries are dying," he said.

Dr. Ray Englander, a Eugene neurologist, decided to protect himself against lawsuits. "I've transferred all my assets to my wife," he said.

Dr. Glenn Keiper decided to seek safer ground. He's leaving Eugene in August for Idaho, a state with stronger legal protections for doctors.

The neurosurgeon is one of only nine doctors in Eugene who work on the brain, spinal cord nerves and bones that surround the central nervous system. Neurosurgeons also get called into emergency rooms to perform surgery on people who have suffered traumatic head injuries.

"He's the kind of guy you work real hard to recruit," said Candice Barr, executive director of the Lane County Medical Society. "We have a young man with the rest of his career out in front of him and he's not going to practice here."

Keiper said he's never been sued and has no pending lawsuits against him, but he's concerned he could get hurt if he ever does get sued.

"I'm a target," he said. "In this state it's open season on doctors, and neurosurgeons and obstetricians are a big-time market for medical lawsuits, whether they're just or not."

Since 1999, premiums for Oregon neurosurgeons have increased 187 percent, according to the Oregon Medical Association. An OMA survey found that 43 percent of the state's 89 neurosurgeons have stopped or will stop providing high-risk services because of high malpractice premiums.

Neurosurgeons covered by Northwest Physicians Mutual, a doctor-owned insurance company, have seen their premiums increase from $23,463 in 1999 to $62,704 in 2003. Obstetricians have seen their premiums increase from $21,895 to $61,203 in the same period. That's for base coverage -- $1 million per claim, $3 million aggregate per year -- and many doctors carry more coverage.

Keiper said he's quit doing certain high-risk procedures and now practices "defensive" medicine. "If you think of a test, you order it," he said. "You have to."

Keiper has other reasons for leaving Eugene. He'll be going into practice in Coeur d'Alene with a friend from medical school. He believes Sacred Heart Medical Center officials haven't given enough support to neurological services and technology. And he didn't want to spend the next five years waiting to see if PeaceHealth succeeds in building a new hospital in Springfield.

He was attracted to Idaho, he said, because the state has safeguards in place for doctors. Idaho has had a cap on noneconomic damages since 1987.

The cap started at $ 400,000 in 1987, and an automatic annual adjustment for inflation has increased it to $ 682,000, said Bob Seehusen, chief executive of the Idaho Medical Association.

The Idaho Legislature passed a bill last week to lower the cap to $ 250,000 with an annual inflation adjuster.

Idaho also has pre-litigation screening panels, made up of a neutral doctor, neutral attorney and a lay person; if the case involves a hospital, a neutral hospital administrator serves on the panel as well.

Plaintiffs' attorneys must go before a panel before filing a medical malpractice suit, Seehusen said.

After listening to attorneys for both sides, the panel can find that a claim has merit, that it doesn't have merit, or that it's "discretionary" -- meaning too close to call.

Regardless of the panel's finding, a lawyer can file a lawsuit, and the panel's finding can't be introduced in court. But about half of the claims that go before the panels never go any further, Seehusen said.

Plaintiffs' attorneys don't like the panels, he said, viewing them as a barrier to filing a lawsuit.

Such measures, along with Idaho's "conservative" legal environment, have kept malpractice premiums in check, he said. Neurosurgeons in Idaho pay about half what their counterparts in Oregon pay, he said.

Screening panels haven't yet been proposed in Oregon. Instead, the Legislature is considering a package of tort reform bills pushed by the Oregon Medical Association.

The bills cover a range of issues. One requires expert witnesses to provide science-backed testimony in an effort to keep "junk science" out of the courtroom, said the medical association's Jim Kronenberg. Another would lower the interest rate that insurers must pay on judgments.

The most critical bill would require that any awards in excess of $100,000 be paid in installments, rather than a lump sum, Kronenberg said.

What doctors really want, though, are caps on noneconomic damages.

Oregon had a $500,000 cap from 1987 to 1999, when the state Supreme Court ruled that such caps are unconstitutional. Voters resoundingly rejected a proposed constitutional amendment authorizing caps in 2000.

"We're absolutely convinced based on our own experience that the cap worked," Kronenberg said. "It certainly reduced the cost of malpractice insurance. When the cap went away, we got huge awards."

Since 1999, there have been 20 settlements and jury awards of more than $1 million, he said. Before 1999, there were three, he said.

The Oregon Medical Association is weighing whether to ask the Legislature to refer another measure to voters, to sponsor its own initiative or to wait to see what Congress does, Kronenberg said.

But it's a high-risk proposition, and the OMA isn't sure voters have changed their minds about an issue they decided in 2000, he said.

Advocates of a cap often point to California as an example of a state where tort reform worked to keep malpractice premiums in check. But a leading consumer advocate in California said that tight regulation of the insurance industry -- not caps -- restrained premiums.

California's tort reform was adopted in 1975 and included a $ 250,000 cap on noneconomic damages. Doctors and insurers said the cap would fix the problem of high insurance prices.

But premiums continued to fluctuate dramatically, said Harvey Rosenfield, president of the Foundation for Taxpayer and Consumer Rights.

A study prepared by Rosenfield's group found that malpractice premiums increased 450 percent in the 13 years after California imposed caps. Only after California voters passed Proposition 103 in 1988 did malpractice premiums stabilize.

Among other things, the measure rolled back insurance rates and froze them for one year.f+t f-t In the 13 years after Proposition 103 passed, malpractice premiums decreased 2 percent, the group found.

Rosenfield, who testified in Salem last week on the issue, said the push for caps disguises doctors' true agenda.

"Their agenda is to escape accountability in the court system because doctors hate the court system just like crooks hate the cops," he said.

Jim Dorigon, chief executive of Northwest Physicians Mutual, the doctor-owned insurance company, is skeptical of Rosenfield's claims. His company, like many in California, is owned by its policyholders and keeps its premiums as low as it can.

"If they (state officials) told us to write lower premiums, we'd go out of business," he said.

A new coalition of attorneys and consumer groups, called Oregonians for Insurance Reform, is pushing against the tort reform favored by doctors.

They're calling for insurance reform, reduction in medical errors and creation of a professional liability fund for doctors.

Oregon attorneys, for example, are required by law to pay a minimum amount into such a mandatory insurance pool. While lawyers don't face the same exposure as doctors, their premiums have stayed stable and predictable.

As state legislators search for a solution, doctors and their allies continue intense lobbying in Congress for caps on awards and other tort reform. Last week, on a 229-196 vote, the House passed a bill capping noneconomic damages at $250,000.

If the bill passes, states could pass their own caps in excess of the federal cap, but would have to establish some limit on noneconomic awards.

But the bill's prospects in the Senate, where Republicans hold a one-seat majority, are uncertain. Senate Majority Leader Bill Frist, R-Tenn., a heart surgeon, has promised to bring it a vote.


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