The elephants in the living room here are the insurance and pharmeceutical industries, but I guess we can't talk about that because they own both parties outright. (It doesn't really matter that the Dems can be bought for around 50 cents to the Republican dollar, when comparing various contributions.)

When Hillary decided to put together a plan early in the Clinton administration, even she didn't propose getting rid of these guys. They still torpedoed her while most of the US Congress stood passively by and let her be crucified. Mojo did a great article on it at the time, but that's "so 12 years ago".

The 1944 law (McCarran-Ferguson Act) which allows insurance companies to collude on fixing prices, is illegal in every other US industry (except baseball).

Both of these industries are currently enjoying record profits.

Jury awards are essetially flat over the last 10 years.

In the 14 states where some form of Med/mal jury awards have been limited, the citizens are currently enjoying rates that are a whopping 3/10ths of 1% lower than states with no caps.

It would be hilarious to watch physicians and attoneys go at it over completely peripheral issues if lives and careers were not at stake.

There are a lot of solid references on this stuff including industry journals. Check this site out.

http://www.centerjd.org/

Gotta go. The Oregon delegation to Boston will be having breakfast on Tuesday courtesy of an outfit called "Pharmaceutical Industry Labor-Management" according to my scedule of events even though I got zero hits when I googled 'em.

A worker's comp system would be an absolute disaster, especially for those injured by a preventable medical error. Hell, just ask injured workers how hard it is to get a payment out of SAIF. SAIF doesn't have mammoth reserves because of its generosity toward worker claims, even legitimate ones.

In Oregon, there are so few jury awards that exceed $500,000 in noneconomic compensation, it's laughable. In all, the median payment to injured patients has hovered around $75,000, according to the National Practioners Data Bank. You're right -- OB cases generate the most in compensation. That's because the lifetime of care involved. That's expensive stuff. Last summer, in a Pendleton case, a jury awarded around $10.8 million. About $2 million was for noneconomic compensation. That is a sum, but more than $8 million was for economic compensation -- the direct care of the child through his entire life.

From 1997 through 2002, there were only six jury verdicts in med mal cases in which noneconomic compensation exceeded $500,000, the cap that the Oregon Medical Association is seeking in its ballot initiative. Data come from the Oregon Board of Medical Examiners closed claims reports for commercial insurance carriers. There've been a few since that time, the Pendleton case included. In each case, the injuries are catastrophic.

There is a problem. But it's a safety problem and an insurance regulation problem. The solutions aren't that complex in description, but are in practice but of all the political crap that comes with change.

First, docs should move to a nonprofit insurance system, similar to the one that Oregon lawyers adopted in the 1970s. A Professional Liability Fund for docs makes sense, especially for the first $1 million in insurance coverage, a common level for most docs. Also, rather than experience rate for the first $1 million in coverage, the insurance pool should include all docs. Rates would drastically fall for high-end specialists such as neurosurgeons and OBs. General practitioners would pay a little higher in rates, but not much, especially in a monopolistic nonprofit system. Docs would then be free to buy excess coverage on the commercial market or through their PLF, much like attorneys do now.

In 2001, the last year for which I have complete data, the loss per doctor in Oregon was about $8,500 per insured doctor. Yet, some docs were paying rates as high as $100,000 or more for insurance. That’s not risk spreading; that’s gouging.

Second, the state needs stronger regulation mechanisms. For the entire property and casualty line, the state insurance division has only one actuary who reviews rate filings. And there’s little the division can do to regulate rates.

In 1988, California voters approved a measure named Prop 103. This at the height of the last insurance crisis when docs and other property and casualty insurers were crying that juries were out of control.

The measure rolled back rates and heavily regulated both rate increases and decreases. This ensured that premiums wouldn’t be subjected to the highs and lows of the business cycle -- low when profits could be made in the stock and bond markets; high when investments tanked. Not surprisingly, after California passed caps in the mid-1970s, rates continued to climb, sometimes astronomically.

After rate reform, however, rates have remained stable. And one group, The Foundation for Taxpayer and Consumer Rights, has used a public challenge process to rate filings to fight back outrageous rate increases for docs there.

Lastly, the entire medical profession needs to end its secrecy around medical errors. The VA system, much to its credit, began informing patients or their families almost immediately after an error occurred. They met with patients, advised them to come in with their lawyers, talked about how the injury occurred, and offered just compensation. They found that their litigation costs dropped and that they were able to compensate more patients. Hey, honesty works. Who knew?

OK, I wrote a lot of words. But the concepts are simple. And it will never happen. Docs don’t want it. The OMA gets a six-figure kickback from the insurance company CNA to sell policies to members. And admit a mistake? Forget about it. As for lawyers, I doubt they’ll really press for such changes. Sure, money is a factor, or the loss of it. But in the end, they are advocates for a single patient. They aren’t the type of advocates to beat a constant drum for system change.

For more info online about the medical malpractice ballot measure, be sure to check out:

http://www.TrustJuries.com http://www.EndFrivolousLawsuits.com

Chris is absolutely correct. I've made an extensive study of malpractice insurance rates. The problem lies primarily with the mechanics of the insurance industry. While there has been a rise in the number of malpractice claims, there is probably a decline in the numbers of medical errors. People are simply more aware of their right to compensation.

Medical error continues to be a large problem. Doctors have not embraced a culture of safety, with notable exceptions. Anesthesiologists embraced safety measures and significantly reduced the incidence of complications in general anesthesia. Their compatriots, surgeons, have not done so and thus continue to suffer from relatively high error rates. OBs have also been reluctant to make significant strides in safety, which is part of the reason their claim rates remain high.

Doctors are also notoriously poor at policing their own. Lawyers, for all our faults, have much stronger protective mechanisms for the consumer. We disbar at a significantly higher rate than the medical boards revoke licenses. There is also a cultural resistance to reporting peer misconduct that doesn't help the medical profession maintain a trusting relationship with the public.

Something like one in sixteen victims of medical error ever recover a dime from their medical providers. The problem is not a few vexatious litigants, but rather the failure of the medical profession to adopt reasonable safety standards.

Marshall L. Wilde, JD, LLM

Just a couple of quick comments if I may. The Institute of Medicine published a study a couple of years ago that suggested that 44,000 to 98,000 people die every year from medical errors in America's hospitals. With Oregon having slightly more than one percent of the national population that would suggest that Oregon has about 500 to 1000 deaths from medical errors annually. Whatever the number Oregon's Medical Examiner's Office needs to publish that number just as it publishes the number of deaths from drug overdoses annually.
Secondly all though there are a lot of factors that have played a role in the increase of medical malpractice rates one that is little noticed is that insurance companies invest most of their funds in bonds and in the last few years as interest rates have declined so have the earnings from the bond market. As a result the insurance companies have seen their profits on bonds decline. Thank you, Michael Wilson

Kenji:

The source is the Oregon Division of Insurance.

http://www.cbs.state.or.us/external/ins/index.html

The numbers come from payouts in 2001 by CNA and Northwest Physician's Mutual. The per doctor costs comes from dividing the number of physicians that each company insures by the total payments. The number of insured docs comes from testimony before the House Judiciary Committee during the 2003 session when the OMA was pushing seven bills to curb consumer rights. The hearings were in March; you may still be able to hear the testimony via the Legislature Website, which I usually get to through http://www.oregon.gov. Try around March 10 to 13 or so. I seem to remember that’s when the hearings were.

Your statement that "a lot of doctors will simply pay someone who complains about a 'bad procedure' even though the patient gave informed consent and was informed of all the risks" is a complete fallacy. It may happen, but it is very rare even in this imperfect system.

We really need to keep SAIF out of any solution to the medical malpractice problem. SAIF has given Oregonians reasons to be mistrustful of it, and it lacks the correct knowledge base to deal with medical malpractice. Don't use a hammer to install a screw, please!

I too like the idea of a non-profit professional liability fund modeled after the Oregon PLF for lawyers. The commentary I see suggests that doctors should police their own, and develop safer methods. That sounds like a function that the PLF helps fill for lawyers. If an attorney thinks she has a potential malpractice problem, a call to the PLF can often result in a solution. I see no reason why doctors can't take a similar approach on the front end and be proactive, especially since some groups (anesthesiologists) apparently already do.

And just to add my two cents to the idea of capping jury awards: I wholeheartedly oppose caps. I don't have any current statistics, but those I see quoted are on par with information I have seen before. People who have been hurt are not getting rich from doctors. The nuisance suits that are currently complained of could be handled readily by a professional liability fund - in fact, the fund could have some kind of mediation or arbitration system designed to be an alternative to court, which might discourage the questionable claims in the first place.

Shawn Dickey UO Law Class of 2004