Sunday, September 26, 2004

Rivaling Bush versus Kerry for bitterness, doctors and trial lawyers are squaring off this fall in an unprecedented four-state struggle over limiting malpractice awards. The volatile issue is in voters’ hands, and each side is desperate to win, spending millions of dollars to make their cases and portray the other side as greedy.

In the four states — Florida, Nevada, Oregon and Wyoming — doctors and health insurers pushed to get measures on the Nov. 2 ballot, and trial lawyers are campaigning hard for a “no” vote.

“We have open warfare here with the personal-injury lawyers,” said Larry Matheis of the Nevada State Medical Association. “It’s a national test of whether, in trying to solve the devastating medical liability crisis, we have to go directly to the people.”

Never before have voters in so many states simultaneously had a chance to weigh in on the debate.

Doctors say caps on awards are needed to rein in soaring insurance rates that otherwise will drive many of them out of high-premium states and high-risk specialties. Lawyers say there should be tighter controls on insurance companies, not on juries, which might be a victimized patient’s only hope for justice.

“The insurance industry, the drug industry, the hospital and nursing-home industry have far more money than people injured by medical malpractice and their lawyers,” said Carlton Carl of the Association of Trial Lawyers of America. “But if there’s a level playing field, I have no doubt Americans will vote to preserve their legal rights.”

The American Medical Association (AMA) has been lobbying tenaciously for federal legislation, supported by President Bush, that would place a nationwide $250,000 cap on noneconomic damage awards. Those are awards for pain and emotional distress as opposed to awards for medical bills, lost wages and other quantifiable costs.

The federal legislation has passed the Republican-controlled House but not the Senate, where the trial lawyers’ Democratic allies have been able to block it, despite being in the minority.

“It seems to us that the thing to do is go straight to the people who want and need this reform,” said Dr. John Nelson, the AMA’s president. “Federal legislation would be easier, but a state-by-state approach is just as effective.”

Caps of varying types have been implemented in 27 states. The AMA contends that most of the other 23 states face a “medical-liability crisis” in which doctors are moving away, retiring or scaling back essential, high-risk services because of rising insurance costs.

The four ballot proposals differ:

• In Wyoming, a proposed constitutional amendment would allow lawmakers to place a not-yet-determined cap on noneconomic losses.

• In Oregon, noneconomic awards would be capped at $500,000.

• In Florida, where lawmakers imposed a $500,000 cap last year, the proposal would limit attorneys’ share of any malpractice settlement to 30 percent at most and less in the case of large awards.

• In Nevada, the measure would remove all exemptions from an existing $350,000 cap and limit attorneys’ fees.

Doctors depict the fee limits as an appropriate swipe at greedy lawyers.

“The voters can make their own judgment,” Mr. Matheis said. “Is having enough doctors more important than personal-injury lawyers becoming very wealthy?”

The lawyers say fee limits would deter them from handling complex malpractice cases on behalf of low-income clients.

“All that those limitations do is make it impossible for victims to hire lawyers as good as the lawyers the doctors and hospitals can hire,” said Bill Bradley of the Nevada Trial Lawyers Association.

In Nevada, lawyers got two proposals of their own on the ballot. One would roll back a range of insurance rates, scrap limits on malpractice awards and prohibit caps on attorneys’ fees. The other would outlaw frivolous lawsuits, while preventing limits on what lawyers can earn representing clients.

Florida lawyers also placed two proposals on the ballot: One would bar doctors from practicing if they have three malpractice judgments against them, and the other would make medical records more accessible.

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