W.Va. Surgeons’ Med Mal Strike May Ease as Polemics Continue

January 13, 2003

The work stoppage by a number of West Virginia surgeons protesting the high cost of medical malpractice insurance showed signs of easing, as several doctors indicated they would return to their posts.

The decision comes at least partly in response to Governor Bob Wise’s proposals to the legislature for the reform of state statutes governing damage awards and limiting recoveries in malpractice actions. The Associated Press quoted one surgeon as indicating that “the governor has made us a reasonable offer and the legislature is moving onward.”

Whether the proposals will actually end the walkout remains questionable, however, as other doctors in the state indicated that they were ready to join the action unless some immediate steps were taken to reduce their med mal premiums. Others have indicated they will continue the strike until action is taken on the proposals, which, in addition to the damage caps, would offer health care providers $20 million in credits.

According to the AP report House Speaker Bob Kiss has pledged to have the legislation passed by his chamber within two weeks. A spokesman for the medical community stressed the importance of having both the governor’s office and the legislature back any reform proposals, and indicated that as soon as doctors were convinced of their commitment to doing something to lower the premium burden they would return to work.

The proposals have already met with opposition from consumer groups and the legal fraternity. The Pennsylvania Trial Lawyers Association released an article entitled “West Virginia Experience Proves Caps on Damages Don’t Work,” which pointed out that the state’s legislature had already studied “damage caps requested by doctors and insurance companies,” and had declined to endorse them.

The PTLA bulletin noted that the legislators had determined that “Any limitations placed on the judicial system will have no immediate effect on the cost of liability insurance for health care providers.” It also concluded that “Adequate and reasonable compensation to injured individuals is essential,” and that “Any limitation placed on the system must be balanced with the need to fairly compensate injured individuals.”

Predictably the bulletin went on to attack the insurance industry for creating the problem, stating that it has “played a role in the continuing limitations on accessible and affordable insurance coverage for the health care providers in the state.” Dave L. Lutz, President of the PTLA blamed “the mismanagement of the insurance industry” for the med mal crisis. He pointed out that even though West Virginia enacted a cap on non-economic damages in 1986, the state’s average medical malpractice premium for 2001 was more than twice that of Pennsylvania.”

The PTLA’s bulletin did not discuss the ongoing medical malpractice premium crisis in that state, nor did it mention other states, notably California, which seem to have integrated medical malpractice compensation limits into the tort system of recovery that have kept premiums down while still maintaining patients rights to seek redress for doctors’ and hospitals mistakes.

Editor’s Note: A Bad case of the “Don’ts”

While West Virginia is the current focus of attention on medical malpractice premiums, the problem is manifest in many other states as well. No real solution is possible unless and until the parties involved recognize each other’s legitimate concerns, which so far seems unlikely.

They all have a bad case of the “don’ts.” The doctors don’t want to recognize that the steadily rising and costly mistakes that occur all too frequently in medical procedures must be somehow controlled. The insurance companies don’t want to admit that they’re raising rates not only in response to increasingly large awards, but also to offset the decreased returns they’re getting on investments. The trial lawyers, and that includes the defense lawyers who work for insurance companies as well as the plaintiff’s bar, don’t want to recognize that their livelihood has become dependent on the continued filing of lawsuits, and that the apportionment of blame for medical mistakes frequently over rewards some claimants, while leaving others with nothing. Consumer advocates don’t want to recognize that insurers have a legitimate concern in trying to harmonize risks with the actual cost of claims.

Until each group recognizes the legitimate concerns of the other no permanent solution to the problem is going to be implemented.

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