Medical malpractice was the reason Deborah Dick lost the use of her legs in 1999. Dick, of Franklin County, received $5.1 million from a successful lawsuit on Thursday.
Her award, and others across the country, have increased medical liability insurance rates to outrageously high levels, according to the Ohio State Medical Association.
The extreme rates have doctors, lawyers and patients concerned.
“If you can’t afford to practice medicine because you can’t pay your insurance, then you don’t provide care. If you don’t provide care, then access disappears,” said Brent Mulgrew, director of OSMA.
A rally was held Oct. 30 at the Statehouse to support actions for Senate Bill 281, which caps jury awards for pain and suffering at $300,000. If passed, the bill will help stabilize or decrease insurance rates.
Senate Bill 281, a specific type of tort reform, aims to fix the legal system and the pain and suffering awards given to plaintiffs suing for malpractice. Doctors and patients involved with OSMA are looking to tort reform as the main solution to either lower or stabilize insurance rates. Since the doctors’ insurance companies have to pay the awards, they can get hit hard with a case such as Dick’s.
Dr. Romeo Diaz, a surgical oncologist in Cleveland, became frustrated after his insurance doubled two years in a row.
“I said, ‘enough is enough,’ ” Diaz said. “I’d be working just to cover my insurance.”
Diaz was about to close his practice, but his patients stepped in and raised the money for the extra insurance costs to keep him as their doctor.
Not all doctors or patients are so lucky. Doctors in high-risk specialties, like Diaz’s surgical occupation or OB-GYN practices, may be forced to either abandon any high-risk procedures they perform to lower their insurance, or go into early retirement or out of business entirely.
Dr. John Thomas, an ophthalmologist and president of OSMA, said even low-risk specialties are affected and have had to pay raised rates as well.
“The manner in which we practice is much more defensive now,” he said. “And defensive medicine doesn’t give patients as much as they need.”
Another practice affected by high insurance is radiology. Thomas said radiologists cannot run certain tests to catch early symptoms of serious illness. Any high-risk procedure might prompt insurance companies to charge elevated rates because the chance of mistakes and injury to patients can be more likely, Thomas said.
Any claims that have been made against the medical professional, whether unfounded or not, raise the rates as well, Thomas said.
He said a Wooster colleague was told by his insurance company that if he had any more claims against him, he would have been charged $350,000 for his insurance this year.
“If that had happened, he would have closed his practice,” Thomas said. “That would be one less obstetrician for Wooster pregnancies.
“If as a society we cannot afford to supply health care, that’s scary,” he said. “If the (court) system allows enough money to be given out that the rest of us are denied health care, then we ought to make a change.”
“It’s not the fault of the legal system,” said Gerry Leeseberg, attorney for Dick who specializes in trial law for medical malpractice. “It’s the fault of the business practices of the insurance industry.”
The insurance industry practiced predatory pricing during the 1990s, where they competed for market share, selling the cheapest policies to get the most clients so they could generate more money to invest in the stock market, Leeseberg said.
“They didn’t care about the cheap polices because they had such a cushion in the stock market,” he said. “But the cheap policies came home to roost when the market crashed, and they lost it all.”
That’s at least one reason, if not the major reason, why insurance rates are skyrocketing, he said.
Cathy Levine, executive director for United Health Care Action Network of Ohio, said she agreed with Leeseberg.
“The jury awards are not the (main) problem,” she said. “Studies have proved it.”
She pointed out the studies released by the Cleveland Plain Dealer on Oct. 20 and Americans for Insurance Reform on Oct. 10. These studies reveal that malpractice jury awards and settlements have no rising pattern, either in the number of case loads or the amount of jury awards, which coincides with the dramatic rise in insurance rates.
Also, two studies have been done in Franklin County, showing no boost in frivolous lawsuits or million-dollar awards to explain the increase in insurance rates.
Michael Derau, law clerk for Judge Chris Boyko of Cuyahoga County Common Pleas Court, said frivolous lawsuits can hurt the insurance companies as well.
“Every trial costs money, no matter how it turns out,” Derau said.
He said only about five percent of malpractice suits filed actually see a courtroom; the rest are either thrown out or settled.
“The settlements can be just as bad as court trials for insurance companies to pay for,” he said.
Derau said malpractice cases take up a steady percentage of the docket, and estimated that for every 10 cases closed, there are 10 more waiting to be filed. Out of the 400 cases on Judge Boyko’s docket, 34 of them were medical malpractice suits.
However, he said awards like Dick’s were very unusual.
Leeseberg said patients like Dick who are drastically affected by malpractice would be the ones most affected by tort reform.
“They’re trying to limit the amount of compensation, but the people limited will be the ones who have the worst claims, the ones with catastrophic injuries, who are found to deserve more than $300,000, which is now all they would get under tort reform,” Leeseberg said. “Is there a price to put on your legs?”
Thomas said he thought the reform was the best solution.
“I do think there are many different factors,” Thomas said. “But the only solution, from a practical point of view, is a cap on pain and suffering. It’s the only solution that’s worked anywhere – it’s been shown to stabilize the market.”
