Dr. Elaine Davis, an obstetrician and gynecologist in the rural northwest Oklahoma community of Enid for nearly 40 years, loved practicing medicine. But at age 68, she thought it was time to ease back on her patient load and quit working 12-hour days.
Instead, she said she was forced to give up on her practice entirely because of rising medical malpractice insurance rates.
“I liked what I was doing, but when I found out my malpractice was going to be $50,000 a year, I decided I just couldn’t do that,” Davis said. “I couldn’t just slow down like the doctors used to do, work and see their patients but not feel like they had to work all day long.
“If it hadn’t been for the malpractice insurance, I’d still be practicing in my office right now.”
Some lawmakers are pushing for changes in the court system that they say will help bring down those insurance premiums. The Republican-led effort seeks to put more restrictions on civil lawsuits in hopes of limiting jury awards that they say inflate these premiums.
The Oklahoma Legislature begins its yearly session on Feb. 6.
Opponents of this effort say doctors and big businesses simply want to be shielded from having to pay damages when someone is injured because of their negligence.
“My opinion … is that it is a very good fundraising tool,” said Brad West, a Shawnee attorney and president of the Oklahoma Trial Lawyers Association. “It’s one of those things that (lawmakers) can say to their political base that motivates them to give money.
“But it’s not that simple.”
Republican House Speaker Todd Hiett and Senate GOP leader Glenn Coffee already have a proposal they say targets frivolous lawsuits. It would cap damages for pain and suffering and contingency fees for lawyers. They also want to make it easier for plaintiffs with strong cases to win verdicts on summary judgments without going through trials.
The proposal also targets joint and several liability, which means defendants would only be financially responsible for their relative share of the damages. Under current law, reform proponents argue, attorneys frequently target large manufacturers with financial assets, even though those manufacturers may be only minimally responsible for damages.
“I think lawsuit reform is critical,” said Coffee, R-Oklahoma City. “Because of lawsuits we have businesses leaving the state, limiting their growth or not coming here at all.”
But West and others say the term “frivolous” is a misnomer and that there are plenty of safeguards already in place for weeding out lawsuits that don’t have merit.
Oklahoma judges apparently agree. According to a survey conducted by state Sen. Charlie Laster, the chairman of the Senate Judiciary Committee, more than 68 percent of judges said they consider less than 5 percent of cases to be frivolous. Almost 90 percent opposed a cap of $250,000 for non-economic damages.
Opponents of lawsuit reform say major changes simply aren’t needed.
“We’d all like to be immune from any punishment or responsibility,” West said, “but that’s just not the way our society is set up.”
Tulsa plaintiff’s attorney Jennifer DeAngelis said she supports the idea of encouraging both sides to settle cases early, a move that could save hefty costs associated with a trial. But DeAngelis said she strongly opposes caps on non-economic damages.
DeAngelis said her client in a recent case was mistakenly injected with acid instead of a local anesthetic during a routine outpatient procedure at a Tulsa hospital. The woman, who DeAngelis said couldn’t be identified under the terms of a settlement agreement, suffered severe burns and likely will be incontinent for the rest of her life.
“The damages in this case is so horrific, I don’t think $300,000 is worth it,” she said. “I think caps in cases where you have permanent, devastating injuries, particularly for which there is no treatment and suffering is a daily thing and is life altering, those are decisions juries should be able to make without restrictions.”
Reforms enacted in 2003 imposed a $300,000 cap on non-economic damages for emergency room physicians and obstetricians, but the caps didn’t apply to other doctors. In 2004, those caps were expanded to include all medical malpractice cases but can only be triggered in certain cases where a defendant makes an offer to settle.
While lawsuit reform proponents say hard caps on non-economic damages will result in lower medical malpractice premiums for doctors and greater accessibility to health care, that isn’t what happened in Texas, said Alex Winslow, executive director of Texas Watch, an Austin-based consumer advocacy and research group.
When Texas lawmakers approved a $250,000 cap for medical malpractice cases in 2003, there was a decrease in the number of lawsuits filed, but not much change in the cost of premiums, Winslow said.
“What we were told in 2003 is that doctors could expect significant rate reductions of somehwere between 15 and 18 percent,” Winslow said.” Rates across the industry have dropped by no more than 5 percent, and more than half of doctors have seen no reduction at all.
“Doctors aren’t any less careless and hospitals aren’t any more responsible … but people who have been harmed by medical negligence cannot hold the wrongdoer accountable in a court of law.”
Andy Coats, dean of the University of Oklahoma College of Law and a past chairman of a special tort reform task force appointed by Gov. Brad Henry, said a compromise could be a cap that can be lifted by a judge under certain conditions.
“When a case is truly egregious and there are lots of non-economic damages … it seems to me there ought to be a case when a judge can lift a cap,” he said. “There ought to be exceptions on those egregious cases.”