Repair medical liability system

John Dieffenbacher-Krall’s op-ed (BDN, March 23) opposing medical liability reform restates the traditional trial-lawyer mantra and offers not one new solution to fix our broken medical liability system. Unfortunately, in his attempt to discredit the Coalition for Health Care Access and Liability Reform, he misstates a number of points:

1. The coalition does not advocate any limitation on death benefits. The legislature established these limits years ago. Our reform effort focuses on common sense limits on non-economic damages.

2. Economic damages, as defined in Maine law, include much more than just lost wages and direct medical costs. Just two examples are the cost of custodial services if a person is unable to take care of his or her

home and child care expenses.

3. We agree that noneconomic damages are not “less real or legitimate” than lost wages and medical expenses, but they are difficult to quantify.

4. Numerous studies have found that limits on noneconomic damages positively impact malpractice premiums. There have already been two decreases in rates by the largest insurer in Texas since a limit of $250,000 was established by the voters in 2003. Reform efforts are also showing positive effects in West Virginia and Ohio, both of which also enacted reforms in 2003. While many states with caps have higher premiums than Maine, their rates would be

even higher without the cap.

Reasonable limits on damages are not “harsh and unfair restrictions on people’s legal rights.” In fact, Maine already has caps on liability benefiting the state and state employees, HMOs, bar owners and a limit on damages in wrongful death cases.

But the most outrageous claim is Diffenbacher-Krall’s statement that the real cause of increases in liability premiums has been “low interest rates or sour national economy and the legacy of overly aggressive pricing policies.” In Maine, more than 90 percent of our physicians are either covered by self-insured plans or mutual companies, owned by the physician policy holders. It would be unusual for physicians to be ripping themselves off.

The one area we agree on is that, while liability reform is critical, we should also improve the quality of care by reducing medical errors. While studies by Medicare show that the quality of care provided in Maine is among the best in the country (third highest among the 50 states), there is room for improvement.

Contrary to the article’s assertion that the medical community is hiding errors, Maine’s physicians supported the reporting of sentinel events to the State and supported creation of the Maine Quality Forum as part of Dirigo Health. We are proud to have Dr. Robert McAfee, former AMA president, chairing the board of Dirigo Health. We also support pending federal legislation, S 544, the Patient Safety and Quality Improvement Act of 2005, which would create a national, voluntary medical error reporting system. Federal action is needed to develop a national database so that error trends can be spotted

and mistakes can be prevented.

But the sad part of this story is that even if there were no medical errors, there would still be lots of medical liability cases filed. That’s because in the vast majority of cases filed, there is no evidence of malpractice. Nearly eighty percent of cases eventually are dropped or dismissed but by then the damage is done. Reputations are lost and hundreds of thousands of dollars are spent on legal fees, experts and court costs.

I am surprised the Maine People’s Alliance, a group dedicated to social justice, would support retention of a system that has such high transaction costs that successful plaintiffs receive less than 25 cents of a premium dollar. Imagine if our health insurance companies had loss ratios of 25 percent!

The fact is the medical liability system is broken and needs to be repaired if we are to be successful in recruiting and retaining the physicians we have in Maine. There are 40 percent fewer neurosurgeons in Maine now than there were 10 years ago. Maine will always be underserved, but we can take steps to improve the climate for medical practice in Maine. A reasonable limit on noneconomic damages, as 18 states have enacted, is a start. After paying all of the economic loss, the health care

system in Maine can’t afford to offer more than an additional quarter of a million dollars. The money comes, after all, from the citizens of Maine.

Lee Thibodeau, M.D., is a Portland neurosurgeon who co-chairs the Coalition for Healthcare Access and Liability Reform.