After narrowly losing in the Nov. 2 election, Oregon doctors who pushed for a cap on jury awards in malpractice lawsuits are preparing to take their fight to another arena: the 2005 Legislature.
The physicians won’t seek another limit like Measure 35, since the Oregon Supreme Court has said the Legislature lacks authority to impose one.
So doctors will ask lawmakers to consider other ways to provide relief from rising malpractice insurance rates that have forced some doctors to retire early or drop high-risk specialties like obstetrics.
“The issue is not going away,” said Dr. John Moorhead, president of the Oregon Medical Association. “Citizens of this state are losing access to health care services. The situation will continue to worsen.”
On the other side of the fight, trial lawyers and others who opposed Measure 35 agree the malpractice issue needs to be discussed when the 2005 legislative session convenes on Jan. 10.
“Especially in rural Oregon, it’s hard for people to get services in some medical specialties. We need to address that,” said state Sen. Charlie Ringo, a Beaverton Democrat who himself is a trial lawyer.
Ringo and other opponents argued that clamping a $500,000 limit on so-called pain and suffering awards, as Measure 35 would have done, would violate people’s rights to have juries decide compensation for suffering.
Although the opposing sides say medical malpractice should be discussed by the Legislature, there’s no agreement between them on what steps lawmakers should take.
A recent Oregon Health and Science University study found that the number of actively practicing physicians in Oregon fell to 8,292 this year, a drop of 95 from two years ago and the first such decline on record.
“It’s a complicated issue, but malpractice insurance certainly is part of it,” said Karen Whitaker, vice provost for rural health at the university.
The Oregon Medical Association, representing about 7,000 physicians statewide, is working on a package of proposals to submit to lawmakers although Moorhead declined to discuss them in detail at this point.
Under one proposal, though, the state would set up a panel of doctors to screen proposed malpractice lawsuits, then issue nonbinding opinions on whether cases involved negligence on the part of the doctor.
Lawyers or patients could still pursue lawsuits even if the panel found no evidence of malpractice, but Moorhead said he thinks such a system would cut down on the number of lawsuits filed against doctors.
Ringo, for his part, is working on legislation to have doctors form a self insurance fund, paid for by fees assessed on all doctors statewide, instead of individual doctors buying increasingly expensive malpractice insurance from private companies.
“There are indications that the average insurance premiums paid by doctors would be substantially less,” the Beaverton senator said.
Gov. Ted Kulongoski, a former trial lawyer who strongly opposed Measure 35, also is worried about a doctor shortage in rural areas and thinks the 2005 session needs to look at the issue.
“The governor doesn’t believe that caps on jury awards are the solution, but he is open to other ideas,” said Kulongoski spokeswoman Marian Hammond.
For example, Hammond said Kulongoski might favor expanding a state program begun in 2003 to help ease the burden of some rural doctors by providing up to $10 million a year to help pay malpractice premiums.
More than 1,000 physicians have signed up for the assistance so far, and state officials expect that number to grow to 1,500.
Moorhead calls the assistance program a Band-Aid approach, and he said doctors might try to pursue another statewide ballot measure in 2006 to limit jury awards if the Legislature doesn’t offer some relief.
He noted that Measure 35 was rejected by voters by a narrow margin, 51 percent to 49 percent. Rural voters generally approved the measure but it was heavily defeated in populous Multnomah County, where residents don’t feel a shortage of doctors yet, Moorhead said.
“Eventually people in the Portland area will feel this issue on a more personal basis, and they will join voters in the rest of the state in supporting reform,” he said.
Copyright 2004 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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