Officials unsure of value of malpractice ceiling

May 16, 1991|By Karen Hosler | Karen Hosler,Washington Bureau of The Sun

WASHINGTON -- Bush administration officials conceded yesterday that they have no proof that a new proposal aimed at improving access to health care by limiting medical malpractice awards will work, but argue that it won't do any harm and will do "some good."

President Bush is proposing in legislation sent to Congress yesterday a penalty and reward system to encourage the states to set limits on damages that can be awarded in malpractice cases.

Many states, including Maryland, would lose 2 percent of their federal Medicaid money unless they adopted the changes, which would also make them eligible for extra benefits.

The president's goal is to curb the high cost of malpractice insurance that officials say is driving some doctors out of high-risk specialties, such as obstetrics, and encouraging others to perform unnecessary surgical procedures as a "defensive measure."

Roger G. Porter, Mr. Bush's chief domestic affairs adviser, acknowledged that there is not yet any hard evidence from the 13 states that have already adopted such changes to demonstrate that they are having the desired effect of ensuring that high-quality health care is more readily available.

"There is a question about how much good they are going to do and whether this will solve the whole problem," Mr. Porter told reporters at a White House briefing yesterday. "But I think it is clear from the all the people we have consulted with that the reforms . . . are helping with the problem. They certainly are not doing any harm."

Stuart Gerson, an U.S. assistant attorney general in the civil rights division, argued that there is a clear indication that many doctors are performing "defensive medicine" and at least anecdotal evidence of a shortage of doctors in certain fields and in certain areas because of the high cost of insurance.

Lower insurance costs ought to at least offer greater access to physicians through the mechanisms of the marketplace, Mr. Gerson said.

"We know there are no set answers on the quality side," he agreed, though he noted that the president's proposal also pushes the states to adopt stiffer quality control standards.

Chief among the curbs Mr. Bush is proposing is a $250,000 cap on non-economic damages that can be awarded to the victim in a malpractice case. That means that all medical bills and other financial losses could be compensated, but a ceiling would be applied to how much the victim could get for "pain and suffering" or in punitive damages.

States like Maryland that have taken at least some steps toward limiting awards have done so only after protracted and emotional resistance from trial lawyer groups, which contend that imposing such caps protects the doctors at the expense of the victims' rights.

A similar battle is likely to unfold in Congress if Mr. Bush's proposal attracts much support.

It wasn't clear how hard the administration was willing to push for the plan. The president failed to mention it at a meeting with Republican senators yesterday at which he outlined his domestic agenda.

Although Maryland has imposed a cap of $350,000 on pain-and-suffering awards, the state would lose about $600,000 a year in Medicaid money under the president's proposal because its rule doesn't go far enough.

Mr. Bush's proposal would also require the states to:

* Change court practices that sometimes allow a malpractice victim to collect twice for the same incident and to sue everyone involved for full punitive damages even though their shares of responsibility differ.

* Allow awards for future costs to be paid in installments.

* Set up an alternative dispute mechanism through which victims could settle their claims.

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