A special committee of the American Bar Association has sharpened debate between the medical and legal professions, rejecting legislative proposals made by the American Medical Association to ease the burden of medical malpractice litigation.
The ABA committee said that, in lobbying the federal and state governments for changes, the medical profession is seeking ”special treatment” and exemptions from laws that cover every other segment of U.S. society and is willing to ”trade away” the rights of injured parties for its own self-interest.
Medical malpractice claims should be resolved no differently in the legal system than are other disputes, known as torts, that involve personal injury due to negligence, the committee said.
”In examining this issue, we have found no evidence that the public interest demands vast restructuring of the tort law system,” the committee said. ”Nor do we believe that, to ease the concerns of one segment of society, the rights of all citizens to seek full recovery through the courts for their injuries caused by members of that group should be limited.”
Dr. James S. Todd, the senior deputy executive vice president of the medical association, said there is ”absolutely nothing new” in the committee`s report, which will be considered by the policy-making body of the ABA this week.
He denied that the AMA was seeking special treatment for doctors. He said the medical profession was using its plight to demonstrate the need for reform affecting all tort defendants, from manufacturers to municipalities.
”They totally misunderstand what we`re about,” Todd said of the lawyers. ”No special privileges are being asked in our proposals. It`s a matter of bringing some rationality to a system that is totally out of control.”
The ABA`s Special Committee on Medical Professional Liability was appointed last September by ABA President William W. Falsgraf to study legislative initiatives in the area of medical malpractice.
According to a study by the medical society, every state in the union since the mid-1970s has enacted some type of medical malpractice reform proposal.
But, the AMA study said, these legislative changes have failed to achieve the doctors` primary goals of reducing the number of medical malpractice suits and lessening the costs of successful suits to themselves and their insurers. Some of the legislative proposals by the AMA are similar to those in an Illinois law that recently was declared unconstitutional by Circuit Court Judge Joseph M. Wosik.
The AMA proposals include:
— Placing dollar limits on the recovery by injured patients for noneconomic damages such as pain and suffering and mental anguish.
— Eliminating awards of punitive damages.
— Informing juries when malpractice victims have already been compensated by their own medical insurance. This is designed to curb what the medical profession calls double recovery.
— Limiting contingency fees for lawyers by establishing a sliding percentage of what they may receive of any award that is eventually won.
— Penalizing frivolous suits and setting up various mechanisms to screen out groundless lawsuits before trial.
The ABA special committee agreed with some of the concerns of their medical colleagues but thought their remedies were unnecessary or
inappropriate.
For instance, the lawyers` panel strongly discouraged the filing of frivolous lawsuits and commended judges who use existing economic sanctions to punish offending attorneys, but it rejected AMA proposals to deal with the problem of groundless suits.
The ABA committee said the medical profession is ”unjustified” in describing the current medical malpractice situation as a ”crisis.”
The committee cited a study by Patricia M. Danzon, a professor of health care systems at the University of Pennsylvania, which indicated that only about one in 10 negligent malpractice injuries results in a claim. Further, the study showed, only about 40 percent of the claims that are made result in payments.
Danzon also found, the ABA committee said, that the amount of physicians` income consumed by malpractice insurance has not increased substantially in recent years, ranging generally from 1 to 2 percent for general practitioners to 6 percent for some high-risk surgical specialities.
The impact of the cost of insurance is often softened by the substantial income some physicians earn, and by the fact that insurance premium payments are tax-deductible, the committee said.
New York`s medical malpractice insurance premiums are estimated to be the nation`s highest, averaging about 10 percent of physicians` gross income; but the average income for New York physicians was more than $168,000, the committee said.
The ABA panel also said that procedures by the insurance industry in setting premiums may largely contribute to the problem because they fail to take into account the health care provider`s past malpractice history.
Falsgraf said the committee`s recommendations are ”matters of extreme urgency” because the AMA has a ”war chest of multimillions of dollars” to help carry out its legislative agenda.
Falsgraf defended the committee`s point-by-point rebuttal of the medical profession`s proposals while it failed to offer its own solutions.
”The gist of these recommendations is that no segment of American society should be exempt from the operation of tort laws,” he said.
”If overall tort reforms are called for, fine. Then it ought to apply to everyone–manufacturers, waste disposal operators, doctors and lawyers.”
The committee`s recommendations were endorsed last week by the ABA`s Board of Governors who convened at the start of the ABA`s midyear meeting here. They will be submitted to the House of Delegates, where they must be approved to become official policy of the 300,000-member lawyers` group.
