Malpractice Reform a Double-Edged Sword

"Poor communities frequently had no obstetricians, no neurosurgeons and no orthopedic surgeons because of the risks," Sylvester said. "Now, since the reforms there has been a 69 percent greater growth rate in newly licensed physicians in the past two years compared to the two years prior to the reforms."

Dr. Javier Cardenas, an obstetrician in McAllen, Texas, is one such physician who credits the passage of a non-economic damage cap to his decision to return to his hometown.

"Because of the cap, my average yearly malpractice premiums have decreased from $58,000 to $26,000, and this decrease has allowed me to open up my own private solo practice, something that is hard for most obstetricians because of large overhead costs."

In the past six years, Texas has added 215 obstetricians, according to the Texas Medical Board's Analysis of Physician Demographics for the Texas Alliance for Patient Access, a lawsuit reform organization.

Nevada's Problem

In the Washingtons' home state of Nevada, high premiums were also an issue. Former Nevada Gov. Kenny C. Guinn said this problem required attention.

"Some in the ob-gyn community were carrying a heavy burden and everyone was getting nervous with no limits on the lawsuits," Guinn said, adding that "Insurance premiums for ob-gyns were around $25,000 to $27,000 and then suddenly they were up to $75,000 to $80,000."

Malpractice Insurance Prices Some Docs Out of Practice

The problem became so acute in the medical community that in July of 2002, a major trauma center in Las Vegas temporarily closed its doors because physicians resigned from the facility in response to their high liability risk.

"Our malpractice suits, rather heavy at the time, were creating a situation perceived or seen by others to be a concern for the medical profession," Guinn said.

The governor's response was to call in a special legislative session, where he was able to pass a malpractice reform bill titled "Keep Our Doctors in Nevada Act."

"Injured patients who are hurt by negligent actions of health care providers who have violated known rules, or known standards of care, are prevented from holding those negligent health care providers, fully accountable," said Bill Bradley, former president of the Nevada Trial Lawyers Association in response to the bill.

Drops in malpractice claims in states with caps often come as a result of patients being unable to launch lawsuits because some attorneys are unwilling to take on cases with lower monetary rewards.

"A medical malpractice lawsuit can easily cost a plaintiff's attorney $100,000 to litigate," said Adam Scales, a professor of torts and insurance law. "With a damage cap, there's often not enough money around to make it worth bringing the case. Damages caps make such cases non-economical to pursue, even when the case is very strong."

Without attorneys willing to launch malpractice lawsuits, patients are unable to get recompense. "The decision is made on that person's case before they walk into the courtroom," said Bradley.

Patients like the Washingtons, who found lawyers willing to pursue the cases, faced additional barriers.

Some of the documents needed for the trial from the Centers for Disease Control have not been released due to privacy laws protecting medical service providers and health insurers. In addition, the clinic also filed for Chapter 7 bankruptcy in July, causing the Oct. 19 trial date for the malpractice lawsuit to put on hold until further notice.

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