Perspective

 

"A License To Kill"

By Ronald M Papell

 

With the battle raging in Washington over patients rights, consumers in California are dying at the hands of incompetent physicians and other providers of medical care. With a Governor who has demonstrated his inability to lead on issues of importance to the people of this State, negligent doctors and substandard facilities continue to cause severe injuries and death with relative impunity. This continuing trend has had tragic consequences for the people of this State for the past twenty-five years.

 

In 1975 the insurance industry joined with the medical profession to manufacture a crisis in California. Born of mismanagement and cash underwriting, medical malpractice insurance companies raised insurance rates to astronomical levels to try to recover the losses that they were experiencing due to their failure to maintain adequate reserves. Not surprisingly, physicians rebelled and threatened to cease practice if measures weren't taken to make their premiums more affordable.

 

The response to this contrived crisis was the enactment of the Medical Insurance Compensation Reform Act. Designed to dissuade lawyers from taking medical malpractice cases the Act's most draconian provision limited damages for pain and suffering to victims of malpractice to $250,000. While this sum may at first blush not seem unreasonable, subsequent decisions of our Courts of Appeal have interpreted the limitation to apply to wrongful death cases as well as cases of catastrophic injury. In other words, when a husband and father of minor children dies due to the failure of an HMO to order appropriate tests, his wife and children are limited to recovering $250,000 for their loss.

 

While loss of earnings may also be claimed, countless cases are not brought every year as the cost of prosecuting such cases has risen astronomically. While the cost of living has risen dramatically, the MICRA limitation has not. Twenty-seven years later, a healthy working man who goes into the hospital for a minor procedure and comes out crippled, is still limited to collecting the same $250,000 for a lifetime of pain and suffering. After attorneys fees and costs of bringing the case to court are deducted the patient may only receive half that sum. Indeed, as attorneys fees are also limited by MICRA, many cases are economically prohibited as the costs that must be invested often exceed the potential fees that would be earned if the case were successfully prosecuted. This, of course, was the intent of those who contrived the idea. By denying injured citizens representation and thereby access to the courts, those damaged by healthcare providers have been singled out as not being entitled to equal compensation as those injured at the hands of other tort feasors.

 

While the inadequacy and inequity of patient's recovery should be apparent, the real harm is far greater. As managed care has cut into the income of physicians, many of our best doctors have turned to the medical-legal arena to supplement their dwindling incomes. The result? Paradoxically, the doctors who previously spent their days in operating rooms are now spending their time in court on behalf of the same HMO's who redirected income from practicing physicians to entrepreneurs and corporate CEO's. It should go without saying that these same executives, ever conscious of the bottom line, have often hired marginal doctors to provide medical care whose salary demands are in line with their meager qualifications. This has only served to increase the likelihood of patients being harmed by their supposed healers.

 

Meanwhile, doctors who sold out to the managed care providers and their insurance carriers began charging ever increasing rates for their testimony. As a result, the cost of hiring experts grew exponentially. Today, it is common for the cost of bringing a malpractice case to trial to exceed $50,000! As most injured consumers cannot afford to advance the necessary costs to prosecute their case, a lawyer is left with the dilemma of taking a meritorious case against a clearly negligent practitioner knowing that they may have to advance costs in an amount that will severely deplete any recovery that might be obtained. With statistics showing that 70% of all malpractice cases are decided in favor of the defendant, the lawyer is left with a Hobson's choice. Take the case and risk financial disaster or decline the case knowing that a negligent practitioner will go unchecked and possibly inflict injuries on other unsuspecting patients. In this environment, thousands of meritorious cases each year are not brought thus allowing those responsible to escape without sanction. This, of course, does not bode well for future patients of these practitioners.

 

While many victims of malpractice are finding it difficult to find representation and thereby reasonable compensation for their losses, entire classes of consumers have been disenfranchised entirely. With lost earnings and future medical expenses being the only damages recoverable beyond the MICRA limitation, those without such losses are finding it virtually impossible to find competent representation. Women who work in the home, children and the elderly, many of whom cannot claim such losses, find that the limit of $250,000 has effectively denied them the right to counsel.

 

While the losses of the victims continue to mount, the State, with it's tax supported programs, becomes the payer of compensation to those whom the managed care systems have harmed. As the pressure to reduce costs continues, patients are suffering ever increasing injuries at the hands of a system that encourages malpractice without accountability. While managed care executives receive obscene bonuses for recording record profits, doctors are being underpaid and overworked. A prescription for disaster if ever there was. When all of this is coupled with an arbitration system that effectively shields even the most incompetent practitioners from public scrutiny, the crisis that the insurance industry manufactured has finally become just that, a crisis.

 

Recently, the Legislature of our State enacted the Elder and Dependent Adult Abuse Act. It was established in recognition that many seniors were being mistreated in nursing homes and other facilities who, because of their relatively short life expectancies and their lack of earnings losses, were unable to find attorneys to take their cases. The Elder Act appropriately enacted incentives including provisions for enhanced damages to encourage lawyers to take these cases with the predictable result that operators of these facilities would be held accountable for their negligence. How then do the legislators continue to turn their backs on the overwhelming majority of citizens of this State who are being victimized by a system that encourages malpractice while denying its victims the right to counsel and fair compensation?

 

Unless our elected officials take immediate action to index damages to the increase in the cost of living, citizens will continue to be injured and killed by a system out of control and beyond responsibility. Meanwhile, no less an authority on the tort system than the President of the United States has recently weighed in on the side of the insurance industry and the corporations that are in the managed care business. Claiming that the badly broken liability system is responsible for lower quality of care, President Bush advocates a nationwide cap of $250,000.00 on awards in medical malpractice cases. Interestingly, the President raised the issue at a fund-raiser for Elizabeth Dole and by discussing the issue of medical malpractice the White House was able to split the cost of the trip between taxpayers and the GOP.

 

Unfortunately, the President is as misinformed as he is misguided. It can hardly be contradicted that caps on damages allow negligent providers to avoid responsibility and go on practicing when they shouldn't be. Moreover, the most egregious cases are settled for a small fraction of the damages caused and the corporate entities are able to easily absorb their cost of doing business without taking any steps to ensure that those responsible are prevented from repeating their wrongs.

 

It's time the elected leadership of our State and Country ensure that those responsible for the carnage that managed care has wrought be held accountable and that the practitioners responsible be taken out of circulation. Every day that passes without action being taken to remedy this indefensible travesty will cost many their lives. How long will the debate continue at such a cost?