Voters to pass judgment on medical malpractice awards

Rivaling Bush vs. Kerry for bitterness, doctors and trial lawyers are squaring off this fall in an unprecedented four-state struggle over limiting malpractice awards. The volatile issue is in voters' hands and each side is desperate to win, spending millions of dollars to make their cases and portray the other side as greedy.

In all four states -- Florida, Nevada, Oregon and Wyoming -- doctors and health insurers pushed to get measures on the Nov. 2 ballot, and trial lawyers are campaigning hard for a "No" vote.

"We have open warfare here with the personal injury lawyers," said Larry Matheis of the Nevada State Medical Association. "It's a national test of whether, in trying to solve the devastating medical liability crisis, we have to go directly to the people."

Never before have voters in so many states simultaneously had a chance to weigh in on the debate.

The doctors say caps on awards are needed to rein in soaring insurance rates that otherwise will drive many of them out of high-premium states and high-risk specialties. The lawyers say there should be tighter controls on insurance companies, not on juries who may be a victimized patient's only hope for justice.

"The insurance industry, the drug industry, the hospital and nursing home industry have far more money than people injured by medical malpractice and their lawyers," said Carlton Carl of the Association of Trial Lawyers of America. "But if there's a level playing field, I have no doubt Americans will vote to preserve their legal rights."

The American Medical Association has been lobbying tenaciously for federal legislation, supported by President Bush, that would place a nationwide $250,000 cap on noneconomic damage awards. Those are awards for pain and emotional distress as opposed to awards for medical bills, lost wages and other quantifiable costs.

Lawyers and Democrats

The federal legislation has passed the Republican-controlled House but not the Senate, where the trial lawyers' Democratic allies -- although in the minority -- have been able to block it.

"It seems to us that the thing to do is go straight to the people who want and need this reform," said Dr. John Nelson, the AMA's president. "Federal legislation would be easier, but a state-by-state approach is just as effective."

Caps of varying types have been implemented in 27 states. The AMA contends that most of the other 23 states face a "medical liability crisis" in which doctors are moving away, retiring or scaling back essential, high-risk services because of rising insurance costs.

The four ballot proposals differ from each other:

Wyoming's is a proposed constitutional amendment that would allow lawmakers to place a not-yet-determined cap on noneconomic losses.

Oregon's would cap noneconomic awards at $500,000.

In Florida, where lawmakers imposed a $500,000 cap last year, the proposal would limit lawyers' share of any malpractice settlement to 30 percent at most, less in the case of large awards.

Nevada's measure would remove all exemptions from an existing $350,000 cap, and also limit lawyer fees.

Doctors depict the fee limits as an appropriate swipe at greedy lawyers.

"The voters can make their own judgment," Matheis said. "Is having enough doctors more important than personal injury lawyers becoming very wealthy?"

The lawyers say fee limits would deter them from handling complex malpractice cases on behalf of low-income clients. "All that those limitations do is make it impossible for victims to hire lawyers as good as the lawyers the doctors and hospitals can hire," said Bill Bradley of the Nevada Trial Lawyers Association.

In Nevada, lawyers got two proposals of their own on the ballot. One would roll back a range of insurance rates, scrap limits on malpractice awards and prohibit caps on lawyers' fees. The other would outlaw frivolous lawsuits while preventing limits on what lawyers can earn representing clients.

Florida lawyers also placed two proposals on the ballot. One would bar doctors from practicing if they have three malpractice judgments against them; the other would make medical records more accessible.

Carlton Carl urged voters to reflect on the plight of those victimized by medical negligence. "Someone who's been horribly disfigured, or parents whose child has been killed -- how can say you say $250,000 is the value of that?" he asked.

Kristi Schaefer, owner of an Oregon company that cares for brain injury survivors, acknowledged that the state's proposed $500,000 cap -- which she opposes -- "is a heck of a lot of money."

"But in some cases it may take more than that to help a family get through life," she said. "No two brain injuries are alike, so why should all settlements be alike?"

The doctors and lawyers disagree on almost every facet of the dispute -- for example, the extent to which doctors are leaving no-cap states and whether caps have lowered insurance rates.

"It will be interesting to see how voters sort through all the rhetoric," said Tom Throop, head of a government watchdog group in Wyoming that opposes the proposed cap. "It will probably be the most expensive ballot item we've seen."

Last year, Texans voted 51 percent to 49 percent to authorize a $250,000 cap on non-economic damages against doctors. The state's largest medical liability insurer cut rates by 12 percent, and plans a further cut, but other insurers haven't followed.

Michelle Mello, a Harvard School of Public Health professor, said the debate is challenging for voters.

"Because of how it's played out in advertisements and speeches, voters are justified in seeing it as an industrial battle between doctors and trial lawyers," she said. "There's a lot of dissonance. ... Most people think lawsuits make medicine safer, yet a majority also think there are too many lawsuits."