Malpractice Reform a Double-Edged Sword

Photo: For Some Patients, Malpractice Reform Presents Hurdle to Fair Compensation

It was supposed to be a 15-minute colonoscopy at a local clinic, but it turned into the nightmare of Michael Washington's life.

There was nothing unusual about the procedure, and even his wife Josephine, a registered nurse, had no cause to worry. But after two months of severe cramps, discolored eyes, and emaciation, Washington, a-70 year-old retired Air Force veteran, went to see an internal medicine doctor who told him that he had contracted an active case of Hepatitis C.

"I thought he had cancer," Josephine Washington told ABC News after witnessing her husband's unusual symptoms.

Washington's case was one of nine genetically linked cases of hepatitis C that was traced back to the clinic as a result of unsafe injection practices where syringes were reused instead of being disposed of. Along with those are an additional 105 cases that were possibly related and nearly 40,000 patients that were exposed to the infectious disease that afflicts the liver.

The next step for the Washingtons proved equally distressing, as they and other victims came to realize the harsh reality that they might not be able to hold the clinic accountable. Nevada's malpractice laws place a $350,000 cap on pain and suffering damages, dramatically reducing the value of pursuing these lawsuits for plaintiffs and their attorneys.

Nevada is one of many states that has capped non-economic damages as a part of medical malpractice reform in an attempt to alleviate high malpractice premiums for health care providers and to reduce costs in the health care system.

"Nevada was kind of a poster child nationally for why we must have some kind of reform to get rates down," said Adam Scales, a professor of torts and insurance law at Washington and Lee University School of Law.

Indeed, as the national health care debate continues into the fall, malpractice reform is expected to come to the forefront. But the question remains as to whether malpractice reform really works -- and who benefits the most.

A recent study by Americans for Insurance Reform, a national coalition of public interest organizations that support effective insurance industry reforms, suggests that limiting the liability of negligent doctors and unsafe hospitals is unjustified and would have almost no impact on lowering overall health care expenditures in the United States.

Malpractice Reform May Hurt Some Injured Patients

Not everyone agrees.

Lawrence Smarr, president of the Physician Insurers Association of America and a major proponent of malpractice reform, cited significant concerns and bias with the study.

"The AIR is primarily funded and sponsored by the trial bar," Smarr said, referring to a group of lawyers that typically supports unlimited monetary awards for patients in medical malpractice lawsuits, and thus is opposed to efforts to limit such awards.

Smarr takes issue with two sources of data used in the study, noting unrepresentative sampling because large self-insured hospitals were left out of the reporting data.

Smarr praised Texas, one of a handful of states that have instituted damage caps, for their success in reducing premiums for doctors.

Why Malpractice Reform?

The state of Texas has come a long way since 1994 when the American Medical Association said the state was in a crisis because there were too few doctors for the population, according to Sherry Sylvester, a spokesperson for Texans for Lawsuit Reform.

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