Practice Areas

Medical liability reform can and will work

Honolulu Advertiser

Posted on: Monday, March 26, 2007
By J.P. Schmidt

Plaintiff attorney Rick Fried's commentary, "Tort reform not answer to medical crisis" (March 12), was a very good example of obfuscation, misdirection, half-truths and outright false information.

Hawai'i's citizens need doctors to take care of them. If we do not have enough doctors to deliver our babies, to set our broken bones after an accident or provide treatment when we are ill, then we have failed to provide for our most basic needs and we all suffer as a result.

Fried says the number of doctors has increased in Hawai'i, which deliberately tells only a small part of the story. He doesn't say how many are practicing or have reduced their practices, or if they are in the specialties we need. Many OB/GYN doctors, who deliver babies and tend to women's health, have stopped delivering babies. They are still providing for women's health needs, but we need doctors to deliver babies, too.

It is unacceptable that a person living on Maui, Kaua'i or in Kona who breaks a leg at night must be stabilized, transported to the airport and flown to O'ahu to have the bone set at The Queen's Medical Center because an orthopedist can not be found on the Neighbor Island. It is unacceptable that a person in Kona who suffers a spinal injury is condemned to a life of permanent brain damage because no neurosurgeon can be found to treat him.

Kahuku Hospital went into bankruptcy recently when its medical insurance premiums rose from $70,000 to $465,000. Will Wahiawa and Wai'anae health centers be next?

Even Queen's in Honolulu has only two orthopedists on call. They will wear out under this abnormal burden, and then we will have woefully inadequate care even in Honolulu. It's not just a problem for people living on the Neighbor Islands and in rural areas; it's a problem for all of us.

Medical liability reform is the only thing that has worked, and we've seen results in other states that have adopted these reforms. The laws that work put a cap on damages for pain and suffering and emotional distress. These are "non-economic damages," that you can't put a monetary value on. There are no standards for the value of these damages.

Every state that has enacted these reforms has seen premiums go down, stabilization in the medical liability arena and better access to physician services. Texas enacted reforms in 2003 and later did a report on the results. Premiums went down an average of 19 percent, there was better coverage of 24/7 emergency rooms, more doctors in rural areas, and more licensed specialists, such as neurosurgeons. Premiums went down in Ohio, Nevada, Mississippi, Oklahoma and other states that have passed these reforms.

Fried misinforms about California. Doctors' insurance premiums are higher in the lawsuit-crazy Los Angeles area, but premiums in Northern California are lower than in Hawai'i. From 1975, when California passed the reforms, to 2000, premiums increased 166 percent. But during that period - in the rest of the country - premiums increased 555 percent. In the last couple of years, premiums and lawsuits have been down. But the previous couple of years they were way up. Over the past 10 years the volatile pattern has repeated. In California, the reforms stabilized the medical liability area, and that is what we need in Hawai'i.

Since there is no standard to put a monetary value on emotional distress, the awards of judges and juries can fluctuate tremendously. The House Judiciary Committee was concerned about adequate compensation for spouses and housewives who don't fit in traditional economic damages categories. But the clarification of damages in the statutes can make clear they are entitled to the additional living expenses caused by the negligence. These are "economic damages" that we can calculate. Fried's clients and other plaintiffs who have testified that they wouldn't receive appropriate compensation almost