Tuesday, Feb. 24, 2004 | 9:04 a.m.
WASHINGTON -- A pending Senate bill limits how much money patients could receive from lawsuits against their obstetricians and gynecologists and how long they would have to file a lawsuit.
The change would help lower costly malpractice insurance premiums that are making some doctors, especially in Nevada, close their doors, supporters say.
Critics of the proposal say the measure unfairly singles out women.
The proposal is a watered-down version from one last year that sought to limit lawsuit damages awarded to patients of all doctors. Republicans lost that fight and are now attempting to change it specialty by specialty.
The American Medical Association lists Nevada as one of it 19 "states in crisis" because patients are losing doctors as they close their practices.
"The premiums obstetricians and gynecologists pay in many states, Nevada primarily included, represent such an outrageous percentage of what they take home that they can't stay in business," said Dr. John Gibbons, president of The American College of Obstetricians and Gynecologists, who practices in Hartford, Conn.
As of July 2003 Clark County had the highest premium base in the state, at $141,704 with one company, while other carriers for the county rose from $107,994 to $128,201 and $93,151 to $116,438 from last year, according to the Medical Liability Monitor's 2003 Annual Rate Survey.
Gibbons said this money comes from the doctor's pocket and, unlike another business that can pass on the increase to their customers, many fees for doctors' services are fixed so they cannot be increased. This means any increase in the insurance fee "is coming out of the money doctors are bringing home."
Sen. John Ensign, R-Nev., co-sponsored a bill that calls for a $250,000 cap nationwide for "noneconomic damages" such as pain and suffering, in malpractice lawsuits against the obstetricians and gynecologists. Under the current system, unless limited by state law, some lawsuit damages can run into the millions on top of medical care costs.
Ensign said the limits are necessary because the doctors' "very livelihoods are at stake."
"It's a crisis because women are not getting access to the type of obstetrical and gynecological care that they need," Ensign said.
The bill also would limit the time for filing of lawsuits against obstetricians and gynecologists. Lawsuits could be filed only up to three years after an injury is discovered or until a child is 6 years old. A parent can currently sue an obstetrician or gynecologist for damages up to 21 years after a baby is delivered, an Ensign aide said.
Ensign said that bill allows states the flexibility to go above the $250,000 cap.
Nevada law limits non-economic damages -- pain-and-suffering damages -- to $350,000 except it can be higher in cases of "gross malpractice" or in cases in which a district judge determines there is clear and convincing evidence that the award should be more than $350,000 because of "exceptional circumstances."
An item on the November ballot would eliminate the exemptions in Nevada, however.
Ensign said loopholes in the law and the time lag for its effect to be seen on insurance companies make it is hard to measure the effectiveness of the state limits.
Sen. Harry Reid, D-Nev., said he opposes Ensign's bill because it only limits damages a woman can recover. For example, if a defective drug during pregnancy harms her or her child, the cap would limit damages, but if a man is harmed by the same medicine, no limits would apply. The bill does not improve a woman's access to health care and it will not cut costs because it will not reduce liability insurance rates, according to a statement from Reid's office.
Reid would like to see reform of the insurance industries and has supported a bill that would allow doctors and hospitals to a claim tax credit for a portion of malpractice costs.
"Real reform is possible, but this bill doesn't get us there," Reid's spokeswoman Tessa Hafen said.
Later today the Senate is scheduled to vote to determine if the bill can move forward.
The Alliance for Justice, Public Citizen, the Consumer Federation of America and 19 other groups sent a letter to senators pointing to an August 2003 General Accounting Office report that found the claims doctors had left their practices or their states because of high malpractice premiums to be wrong.
But Ensign said the GAO's report was based on faulty numbers because it incorrectly went to state board measuring the difference between one year's number of licenses and the next.
"If a doctor quits practicing, they are not going to forfeit their license," Ensign said, "If they leave the state, they are not going to want to forfiet their license. It's because you never want to have to take those exams again. You keep your license active."
Sen. Judd Gregg, R-N.H., said the discrimination argument is a "red herring" since the proposal does not limit medical damages.
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