Where I Stand — Brian Greenspun: Solving medical crisis

Friday, July 26, 2002 | 3:51 a.m.

EVERYBODY'S GOT an opinion about medical malpractice insurance. So do I.

The good news is that on the eve of the Nevada Legislature's special session to fix what is a looming crisis, on the day before the Gang of 63 show up in Carson City to cobble together a plan they have tried to hash out with Gov. Kenny Guinn that may or may not work, at the appointed time when they think they have it all figured out, I am going to add my two cents. After all, that's the American way.

If you pay attention only to the media reports, this session and any proposed resolution is being expressed in Democrat versus Republican and doctor versus lawyer terms. Nothing should be farther from the truth, because this entire issue is about something far more basic. It starts with greed and pretty much ends there.

Caught in the middle is every Nevadan who deserves responsible health care at affordable prices and every doctor who can't figure out how to provide both. Throw in the lawyers whose job it is to represent those who can't defend themselves -- and who always get the bad rap, anyway, because used car dealers aren't in this mix -- and you have a recipe for frustration and fear. Hence, the special session.

There is no question that the provision of health care has gone amok. Most of the reasons for the problem revolve around money, so it makes sense that money can solve most of the problems. Some, however, must be resolved by a change in the way we do business. But, as in most things, if we move too far the other way we will face similar crises in the near future.

I think there are a number of culprits in this mess. Let's start with the lawyers. It is easy to look at the myriad lawsuits filed on behalf of injured people. Some are full of merit and some have none. We are supposed to have a system -- the medical-legal screening panel -- to weed out the frivolous cases. But it has no teeth. That's easy to fix.

Once you have a legitimate, well-represented, appropriately run panel, any case the panel says should not go forward does so at the risk not only to the plaintiff but to the lawyer as well. Lawyers must be responsible enough to tell their clients to find another way and another lawsuit, and if the only way to incent that kind of behavior is to put the lawyer at risk, fair enough.

While we are on the lawyers, there is a belief that contingency fees are excessive in some cases. And they certainly appear that way to me. Recognizing, though, that contingency fee arrangements are often the only way people of modest means can avail themselves of the judicial process and should not, therefore, be adversely affected, there is no reason not to have a sliding scale on fees. That compensates the lawyers for the extraordinary risks they take while limiting the perception of greed that seems to hang like a cloud over the legal profession.

Now to the doctors, because they are not free of blame. Most of them have signed contracts with HMOs that do not allow them to pass on increased costs like malpractice insurance. They need to change that. They also need a little backbone that allows them to say "no way" to the HMOs when it comes to seeing more patients each day than they can reasonably handle. Not enough time to listen and always in a rush-rush mode contributes to an environment where more mistakes are made. That's not good for the patients and not good for the doctors.

It would also help if doctors took more responsibility by having higher deductibles. If the ones who get sued have to pay each time and the ones who don't ever see a lawsuit pay nothing, the system would be infinitely more fair and the premiums would go down.

Now the judges. While I don't have a problem with a cap of say, $500,000 or even $250,000, on pain and suffering, I do believe that we must empower our judges with the discretion to lift those caps in cases where such a cap would be adverse to the cause of justice. One without the other would deny people deserving of redress. By the same token, when juries come in with outrageously large awards, judges must have the backbone sufficient to knock those numbers down to a more reasonable amount. Sloughing those cases off to the Supreme Court is not the answer.

Now to the insurance companies and the HMOs and other providing institutions. When medical costs were going out of sight, you guys stepped in and said we will keep the costs under control. You did for a while, but now things are a big mess. And when we look at where the money went in the medical sector, we can't find it in the doctors' pockets, the hospital coffers or in better wages for nurses and other support personnel. It's in your pockets fellows, and it is time to give a little back. Not all of it, because you do provide a valuable service, but just enough so that the public doesn't believe they are getting ripped off every time they get sick. It is bad enough just being sick!

There are many other ideas that could make the system better by adding responsibility to the equation and limiting the opportunity for greed to win out. That's where the Legislature comes in. What individuals won't do by themselves, the collective will of the people must be asserted.

Now's the time to assert that will. But please, don't get hung up with labels and with politics. That will only make matters worse and that is not why the people are sending you to Carson City.