Guest columnist Dr. Raj Chanderraj: Yes, malpractice tort reform is needed

Friday, April 12, 2002 | 4:44 a.m.

Dr. Raj Chanderraj is president of the Clark County Medical Society. He is a cardiologist in Las Vegas.

There is a moral behind the old joke often heard these days: "The way medical costs keep rising is enough to make one sick ... that is, if one can afford it." The current malpractice liability coverage crisis is looming so large that the average citizen can no longer afford to get sick.

As a physician, I would like to identify certain key causes for the present crisis, before I propose a treatment plan.

All the insurance companies that provide liability coverage to physicians have suffered significant losses in Clark County over the past two years. The trial lawyers blame St. Paul's losses on its Enron investment. They seem to overlook the major carrier's losses in malpractice coverage. The losses resulted from significant jury awards in the last two years. These awards exceeded the aggregate payments from 1995-1999. The cyclical downturn in the economy contributes to the insurance companies' losses. When effective reforms are made in the civil justice system, however, as they have been in places such as California and Utah, these losses do not significantly increase physician costs.

A screening panel has been created to screen out frivolous lawsuits. This panel, which is made up of three attorneys and three physicians, reviews each case, and a majority of at least four members must vote to decide whether it has merit. This means that in deciding "no malpractice" at least one attorney must vote "no." Unfortunately, even when the panel has made a "no malpractice" decision, nearly 65 percent of these cases proceed to a jury trial. This is a major cause for the present crisis. The attorneys contend that these are legitimate cases, since a medical expert who reviewed them found malpractice. These attorneys give more weight to the opinion of a paid expert than that of the screening panel whose members are not paid.

Attorneys often state that a few "bad apple" doctors are responsible for the significant costs. The fact is that since 1986, 1,008 out of a total of 2,400 physicians (42 percent) in Nevada have been sued. Defense of these claims incurs significant expense, emotional drain and a break in the physician-patient relationship.

Only a small portion of a patient's symptom is directly related to his illness. The rest is his emotional reaction to his symptom. Unfortunately, given the litigious atmosphere, physicians are reluctant to take care of this emotional component and comfort their patients by saying, "You are going to be fine."

There is a pervasive atmosphere among the juries to overlook the patient's responsibility and self-neglect. The McDonald's "hot coffee" case, which resulted in an award of more than $5 million in this country, was overthrown in England. The judge stated that common sense should prevail and one must know that coffee is hot.

Given the current conditions, what then is the treatment? Injured patients should be adequately compensated for economic damages but a cap should be placed on "pain and suffering," commonly referred to as non-economic damages.

Also, there should be some form of mandatory recognition of compensation from collateral sources. In other words, juries should always be made aware of how much of the cost of a patient's care has already been covered by insurance. Often, patients are awarded costs that have already been paid by insurance companies, because insurance companies are not given credit for what they have paid.

These are the two key elements in stabilizing premium costs in states that have enacted malpractice tort reforms. Arbitration, rather than jury redress, would also help.

Physicians make mistakes. When these occur because of negligence, the injured patient deserves to be compensated adequately for damages and the physician should be held liable. No physician would argue about this and we commend lawyers for fighting to defend the rights of patients. Attorneys are the pillars of our democracy. They protect our rights. They maintain law and order. But when they pursue the wrong cause, society as a whole will have to pay for it -- in this case poor health care at an exorbitant cost.