Chastening the Ambulance Chasers

By U.S. Senator Jon Kyl

All of us tend to hear about instances when patients are misdiagnosed by their physicians or, as happened in North Carolina, when doctors implanted a heart and lungs in a teenaged girl with a different blood type.

But for every wrenching tale like that, there are many other examples, such as the tragedy of a Mississippi woman whose husband suffered severe brain injuries in a car crash but whose local community had no specialist to treat him, since none could afford the high costs of liability insurance. Her husband had to be airlifted to another city and did not get treatment for six hours. He was permanently brain damaged.

This problem is not confined to rural areas. The University Medical Center in Las Vegas, Nevada, closed its Level 1 Trauma unit for 10 days due to skyrocketing premium increases for its trauma surgeons. Rising liability premiums are one of the factors forcing the Tucson Medical Center to consider whether it can continue to provide trauma services.

In many cases it is unfair to blame doctors for this problem, since they have to make a living, pay their bills, and care for their families, just like everyone else.

Nationwide, direct liability costs are growing at four times the rate of inflation. In Florida and Pennsylvania, malpractice premiums for obstetricians or gynecologists now approach $210,000 every single year. Here in Arizona, all but one insurance carrier has left the state and that one remaining is reporting a 12.5 percent increase in premiums effective next month. This comes in addition to a reported 278 percent increase in malpractice insurance expenses throughout Arizona since 2000.

Recently a Nevada doctor testified that his premiums increased from $33,000 to $108,000 in one year, even though he had never been sued or disciplined. He chose to move out of state.

This kind of choice is being thrust on health-care providers nearly every day now. And it is patients, particularly those in rural areas or in border communities, who suffer the most.

Certainly our legal system must come to the aid of patients who are treated incompetently by their physicians. But in going after the small number of bad doctors who merit legal and other disciplinary action, we should not penalize the majority of good doctors who are overwhelmed by frivolous lawsuits or the threat of such lawsuits, causing insurance rates to skyrocket for everyone.

Current law provides few, if any, disincentives to suing a physician, and unscrupulous trial lawyers are taking advantage of that, hoping that some jury might grant an award even for the most ridiculous suits. A Pennsylvania woman who suffered a heart attack, for example, is suing her doctors for $1 million because, her lawyers claim, the doctors didn’t do enough to get her to stop smoking and overeating. In Texas, one estimate found that nearly 86 percent of all medical malpractice claims ended with no payout to the patient -- further proof of the frivolousness of most claims.

Even when lawsuits are justified, trial lawyers are enriched more than the patients. A Hudson Institute study found that 57 cents out of every dollar won in a malpractice case goes to trial lawyers. Medical liability costs, in fact, add an average of $450 in direct and indirect costs to each hospital admission, according to that same study.

President Bush has rightly urged Congress to take steps now to control these ballooning insurance costs. The current system benefits far too few patients, endangers many who lose access to care in their communities, and enriches trial lawyers at the expense of many hardworking physicians.

These are some of the core principles that are guiding us in crafting suitable legislation:

* Setting sensible limits on non-economic damages to help restrain malpractice premium increases while ensuring unlimited economic compensation for patients injured by negligence;

* Reserving punitive damages for cases that justify them;

* Allowing providers to make judgment payments over time rather than in one lump sum;

* Ensuring claims are filed within a reasonable time period; and

* Informing juries when additional payments for injuries have occurred.

As a member of the Senate leadership, I strongly supported the decision to include medical malpractice reform as one of our top legislative items for the 108th Congress. We are committed to ensuring patients access to health care while placing reasonable limits on medical litigation.

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