For the fourth year in a row, Rhode Island doctors and hospitals are pushing for reforms to the state’s medical malpractice tort system that they say would reduce health care costs without hurting people who’ve genuinely been the victims of bad medicine.
But their proposal, backed by an alliance with business, insurance and health groups called the Patients First Coalition, will face two rivals at the State House: a proposal by consumer groups and trial lawyers to tighten regulation of the medical malpractice market, and a proposal by Gov. Donald L. Carcieri to impose a $250,000 cap on non-economic damages and limit lawyers’ pay.
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That puts the doctors’ measure, which supporters have always called a “moderate” and “politically realistic” attempt to curb malpractice insurance costs, right in the middle of a potentially heated battle over patients’ rights, tort costs and health care affordability.
The fact that it’s an election year adds fuel to the fire – and all sides are hoping it will help them.
Patients First is leading the way, with an ad campaign in Rhode Island Newspaper Group papers that targets individual citizens and urges them to contact their legislators.
The ads show Rhode Island patients, businesses, doctors and hospitals all on one side, decrying the high cost of health care and demanding medical liability reform – and the General Assembly on the other side, the only one that doesn’t grasp the problem.
Just in case the message isn’t clear, one ad cites a survey of 398 registered voters last December commissioned by Patients First that showed 76 percent of respondents “would be less inclined to vote for a legislator who does not support medical liability reform.”
What kind of medical liability reform, though? That the survey did not address, except in a question that asked whether lawyers had increased or decreased the cost of health care (89 percent of respondents said they’d increased it).
The actual problem to be solved is also subject to debate, even if all agree that health care costs are skyrocketing – and even that medical malpractice premiums are through the roof (NORCAL Mutual Insurance Co., the leading carrier, has hiked its rates a cumulative 161.6 percent since 2000).
The Patients First Coalition and the governor, whose spokesman didn’t reply to a request for comment for this story, both argue that the reason for the spike in premiums is that Rhode Island’s tort system is too plaintiff-friendly and encourages frivolous litigation.
That, in turn, leads doctors to engage in “defensive medicine,” they say, further adding to the cost of health care with unnecessary blood tests, MRIs, etc.
Asked how much “defensive medicine” costs the system, Newell Warde, executive director of the Rhode Island Medical Society, said he has no local figures, and there are really just “soft” numbers. A 2003 policy paper from the U.S. Department of Health and Human Services arguing for tort reform pegged the national cost at $28.1 billion to $50.6 billion a year.
But Edward J. Quinlan, president of the Hospital Association of Rhode Island, noted that insurance premiums alone take a big bite out of hospitals’ budgets, especially for smaller institutions that can’t afford to form their own insurance captives.
“Look at South County Hospital,” he said. “They have annual revenue of about $67 million, and their medical liability premiums are probably in excess of $1 million. … Here’s a piece that goes to the heart of the bottom line. That’s allocating dollars to a need that is excessive.”
Leaders of another coalition formed last year, Fair Insurance Rhode Island, don’t deny that medical liability insurance costs are high, though they say they are less of a burden than the health care community would suggest.
The core of their counter-argument, however, is that what’s driving up medical malpractice premiums isn’t litigation, but rather the insurance companies’ greed.
Cristine McBurney, president of the R.I. Trial Lawyers Association, noted that NORCAL had built up a $337 million surplus by the end of 2005, 65 percent more than it had in 2002, and almost three times the minimum (“adequate”) level it has to maintain under National Association of Insurance Commissioners guidelines.
“The evidence is just overwhelming that this is not a civil justice problem,” she said.
“What we are firmly convinced of,” said Marti Rosenberg, director of Ocean State Action, a consumer advocacy group, “is that what’s necessary is insurance reform – to take the entities that are making huge profits off of these doctors and hold them accountable to charge less.”
Fair Insurance Rhode Island is pursuing legislation that coalition members say would accomplish that by tightly restricting how insurers set their rates. Additional measures sought last year, to require extensive reporting of medical malpractice claims and rate information, has been embraced by Patients First, and a new version is being pursued by that side.
The Patients First legislation would require a “certificate of merit” for each malpractice complaint and early disclosure of plaintiffs’ witnesses and the substance of their testimony, and reduce the pre-trial interest rate payable with judgments from 12 percent to 5 percent in the early stages of a lawsuit, then 8 percent, among other things.
Carcieri’s proposal would closely mirror California’s 1975 Medical Injury Compensation Reform Act (MICRA), with a $250,000 cap on non-economic damages and limits to the share of judgments that plaintiffs’ lawyers can take to pay themselves.
No hearings have been scheduled yet on any of the legislation. Last year, the Fair Insurance and Patients First bills were tabled and both sides were urged to negotiate a compromise. Despite several meetings, no agreement was reached.
