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Commentary-Medical Malpractice

February 24, 2006

Advertiser Staff


Malpractice claims unwarranted

State Insurance Commissioner J.P. Schmidt claims that preventing medical malpractice is not the solution to the malpractice problem. Instead, he suggests the answer is reducing the rights of patients injured and killed by medical malpractice.

He is wrong. In medical malpractice, as in other aspects of medicine, prevention is worth a pound of cure.

Schmidt claims that reducing patient protections like California did in 1975 will eliminate the malpractice problem and reduce insurance rates. It will not. The Southern California Physicians’ Insurance Exchange, California’s second largest malpractice insurer, recently stated under oath: “While MICRA (tort reform) was the Legislature’s attempt at remedying the medical malpractice crisis in California in 1975, it did not substantially reduce the relative risk of medical malpractice insurance in California.”

In Texas, limits on patient rights advocated by Schmidt have an insignificant effect on insurance premiums.

Hawai’i required a mandatory 20 percent to 25 percent premium reduction when it instituted automobile insurance reforms in 1998. There is no premium reduction at all required in Schmidt’s malpractice proposal.

Schmidt cites problems with emergency room care and claims that malpractice insurance is the “No. 1 problem.” He is contradicted by the state’s own study, “On-Call Crisis in Trauma Care: Government Responses,” issued just last month, which found that there are many reasons for the shortage of doctors willing to help with emergency room treatment. The study confirmed that “damage caps on non-economic damages do not significantly and systematically reduce overall awards.”

It did not find that tort reform was the solution, but rather warned: “However, evidence on how premiums were affected is mixed and findings are at best inconclusive.”

The Advertiser’s Feb. 13 article “Isles headed for healthcare crisis” examined the same issue of doctor shortages on the Neighbor Islands and in rural areas and hospitals. The primary factors contributing to the crisis, according to doctors, were reduced Medicare-Medicaid reimbursement rates, high cost of caring for the elderly, patients who cannot pay their bills, and compliance with increased regulations.

Malpractice was not even mentioned as a factor, let alone the “No. 1 problem.”

The No. 1 problem and No. 1 solution to the malpractice problem is reduction of malpractice in the first place. The American College of Emergency Physicians rates the quality and patient safety of emergency care in Hawai’i a dismal D-plus. The Joint Commission on Accreditation of Healthcare Organizations found heart care in Hawai’i sub-par in 16 of 20 areas. Hawai’i’s medical board is rated dead last in the nation in pursuing disciplinary action against doctors, and has been at or near the bottom for the past 10 years.

Current medical studies estimate that between 100,000 to 200,000 people are killed and a million injured by preventable malpractice every year. The Institute of Medicine recently noted that past studies on malpractice did little to motivate doctors into making needed safety changes and issued a call to action, stating: To err is human, but errors can be prevented.

Safety is a critical first step in improving quality of care. Yet few tangible actions to improve patient safety can be found.

The key to reducing the malpractice problem is to reduce malpractice, not reduce patient rights.

RICK FRIED Past president, Consumer Lawyers of Hawai’i