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Putting a price on pain

On a June 2001 morning, Mack Bailey, 71, was lying in a hospital room, a bag of chemotherapy strapped to his arm.

The Webster County disabled coal miner had bladder cancer. But his wife, Pauline, and six adult daughters were optimistic.

As the first bag of chemotherapy drained into their father’s body, Bailey got hungry — for the first time in weeks. He snacked on a cheese sandwich, pickle and a piece of pizza.

But several hours later, the doctor had bad news for the Bailey family: A nurse had overdosed Bailey with chemotherapy. Thirteen days later, he was dead. The family sued the hospital for malpractice. “We need to stop this from happening to someone else,” said one daughter, Nancy Mathews.

Legal experts say plaintiffs like Bailey’s family may suffer the most from a proposed reform that doctors say will help slow the increase in their medical malpractice insurance: a $250,000 cap on noneconomic damages like pain and suffering.

Bailey was retired, so the family can’t recoup lost wages. His hospital bills weren’t enough to sue for economic damages. So under the cap, their noneconomic losses would be limited at $250,000.

“This will penalize women, children and older people the most,” said William Druckman, Charleston malpractice lawyer, on the noneconomic cap.

Doctors, meanwhile, say patients will benefit the most. Their doctors won’t leave the state. More doctors will come in.

Doctors fled Mississippi for cheaper insurance markets, so lawmakers gave them a $500,000 cap. So did Nevada, after its trauma center temporarily closed.

West Virginia has it, too.

In fact, the Mountain State’s $1 million cap on pain and suffering damages is stronger than most states’. Fewer than half of all states cap awards, from the $150,000 pain and suffering cap in Maine to Virginia’s $1.5 million total cap on economic and noneconomic damages, according to the American Medical Association.

If West Virginia’s cap is so tough, why are we one of 12 states with a medical malpractice “crisis,” as termed by the AMA? Why are states such as Rhode Island, which doesn’t have a cap, not experiencing any malpractice insurance problems?

“Strong liability reform is needed in those states that have a historic problem of frequency and severity of lawsuits,” said Evan Jenkins, state Medical Association executive director and senator-elect from Cabell County. “A stable liability environment doesn’t need the reforms.”

A cap is one piece of the puzzle, but a very important piece, Jenkins said. A coalition of doctor and health-care organizations crafted a list of 10 reforms to the state’s legal system that they hope lawmakers will pass in the next legislative session.

The list includes two reforms the American Academy of Actuaries has said are the most effective in lowering malpractice costs: a cap on noneconomic damages and a mandate that says juries must be made aware of other collateral sources of payments that paid for the person’s injury, such as private insurance or Workers’ Compensation, Jenkins said.

Capping pain and suffering awards assumes that a lot of lawsuits and costly awards are hiking insurance costs.

“But there is no correlation between the enactment of severe tort reform and rates,” said Joanne Doroshow, executive director of the not-for-profit Center for Justice and Democracy, which advocates for issues related to the nation’s civil justice system.

According to separate reports by the Charleston Gazette and Daily Mail, lawsuits may have nothing to do with costly malpractice premiums.

The Daily Mail, for example, looked at National Practitioners Data Bank statistics. The average West Virginia payout from 1999 to 2002 was less than the national average and lower than 27 states and the District of Columbia.

A Gazette analysis, meanwhile, said the number of claims against the state’s doctors since 1993 has decreased and the amount of money spent to settle the claims has not changed.

“Do they really want to solve the insurance problem, or do they want special treatment in the courts?” Doroshow asked. “I think that’s what they want. The insurance problem is secondary to them and an excuse for caps on liability.”

This is not the first time insurance companies have jacked up medical malpractice costs. Or the first time doctors here and elsewhere have mainly blamed an overly litigious climate for expensive insurance premiums. This last happened in the mid-1980s, and before that, the mid-1970s.

Wavering interest rates and stock market fluctuations affect doctors’ premiums, Doroshow said. When the economy is booming, insurers decrease premiums too much because they want to stay competitive. When the economy sours, insurers increase prices to make up for their losses.

One way to keep insurance prices stable? “Smarter underwriting could possibly end the hard and soft market cycles that plague the industry,” Standard & Poor’s Rating Services in London said in an Oct. 29 story on NU Online News Service.

But what about California and elsewhere, where malpractice insurance costs didn’t rise as much as they did in the rest of the country after tough tort laws were passed, Jenkins asked.

From 1976 to 2000, for example, California’s rates jumped by 167 percent, compared to the 505 percent increase nationwide, according to the Physicians Insurers Association of America.

“All we are saying is that it appears — according to our best analysis — that reforms that are meaningful and substantive have worked,” Jenkins said.

Doctors here want the kind of tort laws they have in California. But the Golden State isn’t without its problems.

“Code Blue: medical associations say the exodus of doctors from California is epidemic,” reads a headline in a January 2001 article in the Cupertino Courier, a weekly Silicon Valley newspaper.

A California Medical Association president blamed the exodus on physicians being left with millions of dollars in unpaid claims, the bankruptcy of a large number of medical groups and doctor salaries falling behind the national average, according to the article.

‘What is it going to be like for him?’

The Bounds family sued their doctor after he allegedly sliced their son’s urethra during surgery. They alleged that the doctor was aware of his misstep, but never alerted the parents or referred their son to a specialist. They believe that their son, Forrest, now 3, would not be facing the possibility of a lifetime of problems if he had gotten the right care sooner.

Forrest now urinates through a hole under his scrotum that drains into a diaper. “At this point, we don’t even know if it can be fixed,” said his mother, Lori Bounds.

“What is it going to be like for him when he’s 21, wearing diapers, sitting down to pee and not having sexual relations?” she added.

If the jury finds the doctor guilty, the Bounds will mainly be awarded noneconomic damages.

“I can’t imagine the jury thinking that the young man’s suffering is worth less than $250,000,” said the family’s lawyer, Richard Lindsey, who also is a doctor.

The cap may prevent certain clients like the Bounds and Baileys from getting just compensation for their injuries, said Bill Frame, president of the West Virginia Trial Lawyers Association.

“Like a middle-aged housewife who does not work outside the home,” he added, “if she suffers an injury that is disabling or leads to her death, she has no economic loss. It’s only loss of sorrow from the death or pain and suffering of a disabling injury.

“This cap will be particularly harmful and harsh to those classes of individuals.”

A cap also may reduce the number of lawyers willing to take certain cases, said Michael Hicks, director of research and assistant professor of economics at Marshall University, who has published tort reform research.

Lawyers, Hicks said, decide if they will take a case based on the possible payout and likelihood that they will win.

“Their expected profits will drop because of the cap,” he said.

But a cap also will decrease what an insurance company has to pay when its doctor loses a malpractice case, possibly resulting in lower premiums for doctors down the road, he added.

“If West Virginia adopts a cap on noneconomic damages and passes some of the other proposals, more and more people will find it harder to find representation in medical malpractice cases,” Frame said.

But Jenkins believes a cap will actually weed out meritless cases. Lawyers will be reluctant to spend money on a case that has no merit if the potential award is capped.

“If a person has a legitimate claim, I don’t think they’ll have any problems today, nor any problems tomorrow, getting a lawyer.”

Jenkins added that, “a jury shouldn’t be playing hopscotch with different pots of potential money.” One plaintiff shouldn’t be compensated more for noneconomic damages just because he or she can’t claim any economic losses, he said.

But Mathews, whose father received the chemotherapy overdose, said she doesn’t understand how someone could artificially cap the pain and suffering her family has endured since her father’s death.

“We had to take care of him and watch him deteriorate,” Mathews said. Her father lost control of his bowels. The lining of his mouth peeled away.

“The chemotherapy just burned him up,” she said.

Bailey’s eight grandchildren and five great grandchildren lost a devoted companion, she added. Matthews got teary talking about her 20-year-old son, Josh, who can no longer go fishing with his grandfather at nearby Williams River.

‘We’d like to be known as a physician-friendly state’

In January, legislators will have to wade through the conflicting studies and arguments for and against tort reform.

For example, a recent report by Medical Liability Monitor said most states with a cap on noneconomic damages have lower premiums. But a recent study by Americans for Insurance Reform said the exact opposite, that skyrocketing insurance rates are not tied to jury verdicts.

“Part of the perception deals with dueling reports and dueling studies,” said House Judiciary Chairman Jon Amores, D-Kanawha. “But the reality is that specialists and subspecialists are not coming here.”

The state is now offering doctors insurance through the state Board of Risk and Insurance Management. But it wants to get out of the insurance industry and allow doctors to set up their own medical malpractice company.

Physicians have said they will not do this unless they get tort reform.

Amores said tort reform is a way lawmakers can attract doctors here, similar to how they coerce businesses to stay or relocate in West Virginia. “We do it all the time, with the governor going out and saying, ‘We want you to come to West Virginia, employer X,’” he said.

“We need to tell physicians, ‘We know we are known as a big-verdict state. But we’d like to be known as a physician-friendly state.’”

To contact staff writer Joy Davia, use e-mail or call 348-1254.


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