Massachusetts Lt. Gov. Kerry Healey this week proposed an update to the state’s medical malpractice laws, including streamlining ways to resolve claims prior to trial so that insurance rates for doctors can be held in check.
The bill, which Healey labeled “a good second step” to the landmark universal health care bill signed into law in April, would keep admission of disclosure and apologies for problems out of court, part of an effort to improve communication between doctors and patients.
It also would place a $500,000 cap on non-economic damages, and re-tool a scale for awarding lawyers fees from 25 percent for verdicts over $500,000 to 15 percent for verdicts over $600,000.
Such legislation is the top priority of the Massachusetts Medical Society, a trade group for doctors, but it faces dubious prospects in the Legislature, whose leadership is dominated by trial lawyers.
“When it comes to the industries that drive the commonwealth’s economy, medicine is only second to financial services,” Healey said at a Statehouse news conference. “And yet our liability system, as it applies to medical malpractice, is toxic. It’s toxic to patients, to doctors and hospitals. It presents a real threat to patient safety, as well as to our edge in what has been dubbed ‘the white coat economy.”‘
Healey, a Republican candidate for governor, was joined by Dr. Kenneth Peelle, president of the MMS. Peelle said obstetricians pay $100,000 annually for malpractice insurance, while neurosurgeons pay $96,000. Those costs, he said, help to explain why there are only about 65 neurosurgeons in Massachusetts.
The Massachusetts Bar Association, a trade group for lawyers, said the proposal was political and unnecessary following 1980s changes that established a pay scale for damage awards, as well as an update two years ago that lowered the interest rate that accrues on awards.
“This proposal is a political move during her gubernatorial campaign unsupported by facts, and it’s contrary to reason,” said Warren Fitzgerald, a personal injury lawyer who is president of the Massachusetts Bar Association.
“This proposal would ultimately deprive injured patients of their ability to get compensation,” he added. “It essentially shifts costs from the insurance industry to the public by limiting their ability to make a recovery from the doctors who are insured by that industry.”
A study released by the Harvard School of Public Health earlier this month found that about 40 percent of the medical malpractice cases filed in the United States are groundless. Many of the lawsuits analyzed contained no evidence that a medical error was committed or that the patient suffered any injury, the researchers reported.
The vast majority of those dubious cases were dismissed with no payout to the patient. However, groundless lawsuits still accounted for 15 percent of the money paid out in settlements or verdicts.
The study’s lead researcher, David Studdert of the Harvard School of Public Health, said the findings challenge the view among tort reform supporters that the legal system is riddled with frivolous claims that lead to exorbitant payouts.
However, the American Medical Association, which favors caps on malpractice awards, called the study proof that a substantial number of meritless claims continue to slip through the cracks.
In making her proposal, the Republican lieutenant governor is focusing on a favorite target of her party: trial lawyers. President Bush campaigned for office in 2000 and still talks to this day about tort reform. Gov. Mitt Romney, himself a potential candidate for president in 2008, has also worked to streamline the legal system.
“I don’t see any reason why our legal system should be profiting at the cost of driving up medical costs for the rest of society,” Healey said.
Healey, who is running for governor against three Democrats, an independent and a third-party candidate, has steadily raised her profile in an effort to both distinguish herself from Romney and to build her own legislative agenda. She played leading roles in last year’s overhaul of the state’s drunken driving laws, and legislation this year to deter witness intimidation.
Two of her opponents, Democrats Tom Reilly and Deval Patrick, are attorneys, with Reilly serving as state attorney general and Patrick the former top civil rights official in the Clinton administration Justice Department.
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