Malpractice-Cap Debate Spotlights Women

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Linda McDougal

TALLAHASSEE, Fla. (WOMENSENEWS)–Depending upon whom you ask, capping “noneconomic damages” in medical-malpractice lawsuits is either good news or bad news for women of limited financial means or those who rely on a partner for their primary source of income.

The most common of such damages is “pain and suffering.” Unlike economic damages such as “lost wages,” it doesn’t factor in the loss of past or future earnings. Some say anoneconomic cap will help lower medical-liability costs that have driven up the price of medical services and will protect such litigation-prone specialties as mammography and obstetrics and gynecology.

Here in Florida, where the issue is a hot legislative topic, Gov. Jeb Bush, younger brother of the president, seeks women’s support for capping noneconomic damages at $250,000.

“This situation is especially critical for women in Florida,” Bush said in a June 9 letter to constituents. “Doctors and hospitals close or limit their obstetrics practices and reduce mammography services. As a result, some women in our state are forced to wait as long as 150 days for access to this important screening procedure, losing the opportunity for early detection of problems.”

Trend in States Favors Caps

The majority of states have leapt onto the reform bandwagon. Following a national campaign organized by powerful insurance interests and the American Medical Association, legislators in 30 states have considered medical-malpractice-reform legislation during the 2003 session, according to the most recent issue of State Health Policy Briefs, a quarterly publication of the National Conference of State Legislatures Health Policy Tracking Service. California, Nevada, Mississippi and Ohio have instituted caps. In Texas, voters face a Sept. 13 constitutional initiative on a $250,000 cap and the topic will be high on the agenda at the annual meeting of the National Conference of State Legislatures in San Francisco July 21-25. Trial lawyers, meanwhile, have been pushing against the tide, saying it threatens to wash away an important safeguard against sloppy or incompetent doctors.

Gov. Bush has staked a tremendous amount of political capital on the issue and the fight has gotten nasty. Leaked e-mails last week showed the governor suggesting GOP candidates be found to run against the Republican senators who opposed him and asking business groups to cut off campaign contributions to the offending lawmakers. The governor has not disputed the reports. President George W. Bush has lent a hand, appearing in Florida, as well as other states, advocating for the $250,000 cap. The issue promises to loom large in the 2004 presidential race.

Opponents Call Caps Discriminatory

Those who oppose noneconomic caps agree that women have been hurt by soaring health-care costs that have restricted their access to mammograms and other forms of specialized attention. However, they argue that a cap on medical malpractice will mean that women with low or nonexistent wages will be left with little or nothing to fall back on if they suffer extreme forms of harm.

Such opponents include Linda McDougal, a 46-year-old Wisconsin woman who lost both of her breasts to a medical error last year.

Rally

“It is time for the people of Florida to hear the truth,” McDougal said at a rally of the Academy of Florida Trial Lawyers in Tallahassee earlier this summer. McDougal says noneconomic caps favor those with the highest incomes–statistically white men–at the expense of those who can’t prove their families will suffer economic losses caused by the maiming or death of the patient. “Caps discriminate. They discriminate against children, seniors, minorities and women like myself.”

Limits on “pain and suffering” damages have passed on party lines in Congress, backed by Republicans and opposed by Democrats. But the U.S. Senate seems headed for gridlock, with Democrats saying this is an issue best left to the states.

Influential Lobbyists on Both Sides

It’s a fight that is blurring partisan boundaries. Well-heeled campaign contributors–doctors and insurers who favor a cap and lawyers who oppose it–are vying for legislators’ votes and presenting compelling arguments. There are victims on both sides of the issue: either well-intentioned doctors driven out of business by spiraling costs or blatantly abused patients left without a limb or other crucial body part because of a doctor’s negligence.

Gov. Bush, meanwhile, is looking to reforms in California–which has set a $250,000 cap on noneconomic damages–as a template to help his state cope with what he says is a crisis in medical-malpractice insurance.

Whether there is such a crisis remains under debate. According to the Center for Justice and Democracy, the number of claims and payouts has been steadily falling. In Florida, according to the advocacy group, the average malpractice award in 2001 was $219,122, compared with $219,461 nationally. The national figures show the state’s total malpractice awards have increased at a rate of just 1 percent a year. A comparable state database of malpractice payouts shows malpractice awards those same years dropping an average of 3 percent a year.

Statistics offered by both sides are contradictory, and, in fact, the fast-growing Sunshine State actually has more physicians than it did just five years ago. Yet several hospitals have closed their obstetrics-and-gynecology divisions, malpractice insurance rates have doubled and tripled for some specialties and doctors have staged walkouts to emphasize their plight. Bush has called a series of special legislative sessions to enact reforms and he’s vowed to veto any legislation that doesn’t include the cap.

The Florida Legislature so far this year failed to enact Bush’s reforms in either its 60-day regular session that ended May 2, a two-week special session on the budget and other unfinished bills that followed shortly after or in a four-day special session called purely for medical-malpractice insurance reform. The governor has vowed to keep the Legislature in Tallahassee all summer if need be, until he gets his way.

The cap is at issue, with the Republican-controlled House basically rubber-stamping the Republican governor’s proposal three times this year so far, while the Senate overwhelmingly passed a bill that excluded the cap each time. Although strongly Republican, the upper chamber in Florida has traditionally forged its own path, and the medical liability issue is an example of that. Still, with campaign contributions and other majority perks at stake, it remains to be seen how long the Senate will hold out against the pressure.

Nancy Cook Lauer is a journalist in Tallahassee, Fla.

For more information:

National Governors Association Center for Best Practices–
“Addressing the Medical Malpractice Insurance Crisis”:
http://www.nga.org/center/divisions/1,1188,C_ISSUE_BRIEF%5ED_4703,00.html

American Medical Association–
“The Medical Liability Crisis”:
http://www.ama-assn.org/ama/pub/article/6282-7225.html

The Center for Justice and Democracy–
“REPORT REFUTES AMERICAN MEDICAL ASSOCIATION CLAIMS OF ‘CRISIS'”:
http://www.centerjd.org/press/release/030424.htm


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