Saturday Mailbox

SATURDAY MAILBOX

July 10, 2004

Targeted reforms could help defuse malpractice crisis

It is pleasant to believe that the conflict between physicians and trial lawyers can be resolved by combining a small dollop of tort reform with larger doses of "rate stabilization" and medical discipline ("Political malpractice," editorial, July 5). But as chairman of a commission on this subject that offered its report in 1984 and vice chairman of a 1985 task force that gave rise to changes which kept a lid on this problem for 20 years, I cannot endorse this approach.

The mid-1980s proposals imposed a cap on pain-and-suffering awards, halved the number of lawsuits by introducing a "certificate of merit" procedure- and eliminated a duplicative arbitration system. Obstetricians were protected by shortening the statute of limitations for actions by minors. Finally, the commissions sought to drastically limit the double recoveries made possible by failure to subtract other insurance recoveries from malpractice awards.

The last of these proposals was not fully enacted. And the Maryland Court of Appeals, in a recent feat of judicial activism, found the change in the statute of limitations "unreasonable" without discussing the findings that led two state commissions to consider it reasonable.

The trial lawyers in 1994 secured an increase in the pain-and-suffering cap, which was automatically adjusted for inflation. Predictably, we have a new crisis.

Efforts to pretend that this situation is the result of uncorrected malpractice by a small minority of doctors involve lying with statistics.

Most specialties attract few lawsuits, but they are a problem for high-risk specialties, notably neurosurgery, cardiology and obstetrics. And they fall on the competent as well as the incompetent.

Nearly all births are attended by obstetricians, and few happen perfectly. Most deaths take place in hospitals, and some of the aggrieved lash out at any supposed human cause, particularly one that is well-insured.

Studies indicate that few awards are caused by "rogue elephants" in the profession, and justified awards are frequently inflated by estimates of future medical expenses based on worst-case scenarios.

It still seems wise to profit from the effort at conservative reforms, respectful of the jury system, the state made in the 1980s.

Maryland should provide, as have other states, for an offset for damage awards for recoveries from other insurers. It should require, in lawsuits for birth injuries brought more than five years after the event, that negligence be proved by clear and convincing evidence.

It should allow awards for future medical costs to be deferred by providing a health insurance policy so that actual costs, not extravagantly estimated ones, are reimbursed.

Proposals for the use of public funds to enrich the trial bar should be rejected.

George W. Liebmann

Baltimore

New rules to ensure drugs are fairly sold

I am a practicing psychiatrist who is active in clinical trials testing new psychiatric medications. The editorial "Asking for trouble" (July 5), which criticized the pharmaceutical industry's marketing practices, struck a chord in me, and I would like to propose some suggestions to address the problems it raised.

First, direct-to-consumer advertisements must be modified. Industry sponsors should be limited to describing disease states, which would educate consumers. Consumers could then bring their concerns to their physicians.

The advertisements should not be allowed to name the product; if treatment is indicated, the physician and patient can co-operate in choosing the best treatment.

Second, the marketing representatives who inundate physicians' practices must be limited in how they promote products.

Advocating use of a product for an illness for which it is not approved is still a common practice, despite Food and Drug Administration rules prohibiting it. Physicians should document and report any such violations to the FDA and the pharmaceutical industry. In addition, marketing representatives must be prohibited from giving false or misleading information regarding competing products.

Third, no marketing representative should be permitted to intimidate a physician by threatening to withhold product samples because a physician disagrees with product information promoted by the representative or because his or her prescribing practices make insufficient use of the product.

Fourth, marketing representatives should be prohibited from providing free lunches, free dinners, free pens, free coffee mugs, free laser pointers, etc., to physicians. These gifts constitute subtle bribes.

Finally, clinical investigators who conduct clinical trials for various pharmaceutical sponsors should be prohibited from accepting payment from pharmaceutical sponsors for giving promotional talks to other physicians. Payments vary from $750 for lunch presentations to more than $2,000 for out-of-town presentations.

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