The doctor is not in

February 06, 2003

DR. ANTHONY Clay is leaving his hometown of Philadelphia and the patients he treats there and heading for Delaware. Not because he wants to, but because he has to.

As reported by Marego Athans in The Sun yesterday, Dr. Clay is on the move because his malpractice insurance in Pennsylvania costs about $70,000 a year; in Delaware he will pay about $8,000. And he is not alone.

Surely, there is something desperately wrong with a system that forces doctors to travel like nomads from state to state in search of medical liability insurance; something desperately wrong with a system that denies patients access to medical care in their communities because their doctors have gone on strike; something desperately wrong when talented doctors have to fold up their practices because they can't afford malpractice insurance and can't move elsewhere.

Patient advocates blame insurance companies, charging they are raising premiums beyond the reach of doctors to make up for investment losses. But those losses are insignificant compared to what is going into the pockets of malpractice lawyers.

There's no doubt that most of the pressure to raise premiums has come from the whopping sums juries award to patients who sue their doctors for failing them in some way. It's overwhelmingly expensive to underwrite risk when there's no telling how high such awards might be.

Many insurance companies have gone out of the malpractice business rather than try to meet the demands of litigious patients told in television ads that someone else should be held financially responsible for whatever ailment afflicts them.

President Bush, moving to avert a doctor shortage crisis now building around the country, wants Congress to impose federal limits on jury awards in malpractice cases. His starting point is too stingy, and he should exempt states like Maryland that already have acted on their own. But he's got the right prescription for the problem.

Maryland and other states where so-called "pain and suffering" awards have been capped have avoided the spectacle now on display in Mississippi, Florida and elsewhere of doctors on strike in protest of crippling insurance rates.

Patients who are truly aggrieved receive full compensation for their health care and economic losses. What's limited is the noneconomic damage of pain and suffering - costs that skillful lawyers can often persuade juries to add on in copious amounts, with a substantial share often going to the lawyer.

Mr. Bush would set that limit at $250,000. Maryland imposed a limit of $350,000 in 1986. The state limit now increases automatically by $15,000 annually, and currently stands at $620,000.

Lawyers will say that amount isn't enough for someone who loses a limb, is severely disabled or perhaps is even killed by a doctor's negligence. But the pool of resources is not bottomless.

In Maryland, as in much of the country, most doctors in private practice are insured by physician-owned companies that don't have to answer to stockholders. Such companies were created because doctors couldn't get malpractice coverage anywhere else.

But even doctor-owned insurers can't afford to pay out more than they take in. They rely on damage award limits for stability and predictability.

As is clear in too many other states, a handful of patients winning lottery jackpot awards of millions can rob the rest of the community of access to any health care at all.

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