Mr. Koch’s article (KBJ 7/03) opposing caps on pain and suffering awards in medical malpractice contains the usual generalizations and reliance upon inaccurate reports. To begin, I know of no industry that believes caps on judgments will solve all of their problems. However, caps on pain and suffering awards will relieve a large financial burden on many industries and prevent many future bankruptcies, which in the past have cost many people their jobs.

Caps on pain and suffering, not economic damages have been shown to reduce premiums. The Weiss report, which Mr. Koch cites, contains several errors in statistical analysis.

Two examples: Weiss includes states that have caps over 250K, clear up to one million. We have maintained, and it has been shown, that only the 250K cap will affect the premium rate. Weiss and the plaintiff’s bar continue to claim that lost investment and under reserving have caused the insurers to be in financial straits. This is also wrong. Insurers are very regulated in allowed investments and 80 percent of investments are in bonds (most of that in Federal Treasuries) and less than 10 percent in stocks.

Also, investment income did not take a dramatic hit in the last three years and did not result in operational losses. These huge losses were directly related to many more multi-million dollar settlements and verdicts without an increase in the number of filings per number of physicians.

Here are comments from two organizations whose data Weiss used:

In a July 7, 2003 e-mail to Senate Majority Leader Frist, Medical Liability Monitor editor Barbara Dillard writes, “ We believe it is misleading to use median annual premiums compiled with data from Medical Liability Monitor to demonstrate the effect of non-economic damage limits on liability rates.”

The National Practitioner Data Bank (where by law all settlement data is sent) has gone on record opposing Mr. Weiss’ methodology, saying that, “Although the statistical median is usually the best measure of the “average” malpractice payment received by claimants, it does not show the ‘burden on insurers.’ The ‘burden on insurers’ is the total amount of dollars paid, not the ‘average’ or median payment.”

These two statements and more complete discussion of the Weiss report can be seen at thepiaa.org and under “news highlights” click on “read PIAA response.”

Regarding history and evidence being on our side it should be noted that the tort reform law in Washington was passed in 1986 and the caps overturned in 1989 by the Supreme Court, stating that, “the measure of damages is a question of fact within the jury’s province.”

Since this case took the usual amount of time to reach the Supreme Court, no insurer was willing to risk moderating any rates until the issue was decided. A wise decision by the insurers as it turned out. Also, we have never claimed that caps would reduce premiums; only moderate their rise somewhat along the lines of general inflation.

And now, to address the oldest, most nauseating, most misleading and ad hominem attack of all, the “bad doctor” issue. We are as embarrassed by the few rogues and incompetents in our profession as I imagine are the attorneys, the clergy, realtors, builders, etc. However, we do not have the same power over physicians as The Bar has over attorneys.

If I am correct, it is attorneys and judges (the Supreme Court), without juries who make the final disciplinary decisions on other attorneys. When our board disciplines a physician, that physician can turn to the attorneys and a jury trial to contest the judgment of peers. Like county prosecutors, we sometimes have to accept a lesser discipline than we might prefer in order to accomplish our goal and improve the practice of some of our colleagues.

Does anyone really believe that it was “Bad Doctors” that caused the tragic mismatched transplant at Duke University? As with most medical malpractice, it was unintentional human error, and considering the millions of transplants done over the years, it is a credit to all those involved that so few incidents of this kind have occurred. Despite continuing improvement in systems to prevent error, there will always be the human factor and people should be compensated for their damages.

Still, if the whole system collapses, compensation will not be necessary because there will be no care available.

Lest I be charged with being unduly alarmed I will point out that the Memorial Clinic (the largest multi-specialty clinic in Olympia) went out of business, as did the Everett Family Practice Clinic. Our own Doctors Clinic is continuously advertising for physicians as are others in Kitsap County and across the state. Physicians Insurance, which underwrites professional liability for about 70 percent of Washington physicians, reports that in the last several years the rate of physician retirement has increased 50 percent and the average age has dropped from 63 to 58.

This is a big train wreck that is going to happen if we don’t fix the tracks.
Look up more info at wsma.org click on “tort reform crisis coverage.”

Richard Ambur, MD
Silverdale