MASS. DOCTORS, LAWYERS GIRD FOR MALPRACTICE BATTLE IN '85 PHYSICIANS: INCREASE IN SUITS IMPEDES CARE, BOOSTS COSTS; ATTORNEYS: PROVE IT
The meeting of the governor's advisory committee on medical malpractice had barely begun last month when one of the lawyers in the group wondered aloud what all the fuss was about.
"What problem?" the lawyer reportedly asked, as the committee began discussing its mission. "Why are we here?" No remarks could have pointed up more clearly the differences between doctors and lawyers over the issue of malpractice.
To the doctors on the committee, the lawyer's comments were a clear sign of the struggle they face in their attempts to change the Massachusetts medical malpractice system, which they see as a major threat to their ability to practice medicine.
The lawyer who spoke up at the meeting was merely reflecting the general consensus of his colleagues that the doctors were a long way from proving their case and justifying their ideas for altering the way malpractice litigation is handled in the state.
Whether the committee will be ready to speak with one voice and make recommendations to Gov. Michael S. Dukakis several months from now is unclear, but given the nature of their disagreement over the matter, it is unlikely the doctors and lawyers will find much common ground.
Politically, it is an important year for the doctors. They appear to have the stong backing of Dukakis, an ally who can help them press their cause in the Legislature, where lawyers have always had a strong presence.
The doctors also believe their arguments are more compelling than ever. Malpractice is no longer their problem alone, they contend. The constant threat of lawsuits and continuing rise in premiums are forcing them to take defensive measures in order to avoid negligence suits, driving up health care costs, they say.
While doctors have no one solution for their complaints, they say the time is long past to seriously consider a number of proposals that would provide them with relief.
The most controversial of these measures involves placing a cap on the amount juries can award for pain and suffering in malpractice cases. It is these awards, given to plaintiffs above the amounts they receive to pay for medical care and loss of income, that often inflate cases beyond their worth, they say.
Lawyers counter, however, by saying that doctors have exaggerated the effects of malpractice suits on medical costs and are seeking to win special protection that would in effect limit their liability in negligence cases - a protection no other segment of society enjoys.
"Any form of injury caused by a person ought to be compensated," said Evan Lawson, a Boston malpractice lawyer. "There's no move to put a cap on awards if you're injured in a car accident. There's no move to put a cap on what you can recover if you're injured by an accountant or lawyer. I don't see why doctors should be in a privileged position."
The malpractice question involves more than a dispute between two professions with different self interests. Fundamentally, it involves the future of the state's health care system. But the fact that two powerful groups are at the center of the debate raises the possibility of a long battle that may continue well beyond the present legislative session.
Around the country, similar confrontations are taking place, most visibly in Florida, where the struggle between doctors and lawyers escalated last year into the costliest political campaign in the state's history.
Florida doctors spent $4 million trying to amend the state's constitution to limit jury awards for mental anguish in civil damage suits. Lawyers countered with a $3 million ef-
fort to defeat the measure. Both sides received heavy contributions from outside medical and legal associations that saw the issue as possibly affecting similar efforts in their states.
Citing several technical reasons, the Florida Supreme Court ruled the measure could not be placed on last November's ballot, but doctors warned they would renew their campaign if they did not get some relief soon from the state's Legislature.
The decision by Dukakis to form an advisory committee and reactivate a special legislative panel on malpractice were victories in themselves for Massachusetts doctors, who began the new year determined to make the issue their rallying point.
Normally a confident group, doctors felt beseiged in 1984, and their worst fears were realized when Dukakis signed a major piece of legislation prohibiting them from billing Blue Shield subscribers beyond the fees set by the insurance company.
For doctors, the restriction on that practice, known as balanced billing, represents an unwarranted limitation on what they see as their right to practice in a free market. And it has cut off their ability to pass on some of the costs of their malpractice premiums to patients and the insurance company.
Last May, doctors were hit with a 42 percent increase in malpractice premimums. The average malpractice premium is now $6700, and specialists in high-risk areas such as neurosurgery pay as much as $17,000 a year for insurance.
Additional rate hikes appear likley. The Joint Underwriting Authority (JUA), the company that covers nearly all the state's 12, 000 physicians, has already said it will have to seek substantial rate increases if it is to meet anticipated claims resulting from settlements or awards made in malpractice suits.
Created by the Legislature in 1976 to ensure continued coverage for the state's doctors, the JUA paid out only $23,000 in claims in its first full year of operations. By 1983, that figure had risen to $30.4 million. The cases filed against doctors have risen during that period from 58 a year to 403.
Despite these increases, many lawyers say it is the insurance system that is to blame for the doctors' problems, not the judicial system. Some lawyers have suggested that a merit system should be created in which doctors with the most suits against them would pay the highest premiums.
The lawyers also contend that nationwide statistics concerning malpractice favor the doctors. Only about 30 percent of malpractice cases that go to trial result in awards for plaintiffs, they say, compared with a figure of about 65 percent for all other types of personal-injury cases. The cases tried in Massachusetts reflects these figures, the lawyers say.
"Doctors are searching for fairness, but they're going about it in a misguided way," said Arthur F. Licata, one of three attorneys on the advisory committee, which also includes seven physicians.
But doctors feel they have suffered enough and are now looking to the Dukakis administration to balance their past losses with a serious effort aimed at making the malpractice system more palatable. The administration seems willing to help.
"Doctors do have legitimate reasons for being concerned," said Paula Gold, the state's consumer affairs secretary, who will take the committee's recommendations to Dukakis, "and we're intent on seeing if we can do something on this issue."
Dukakis himself pledged his support in a letter he sent to physicians last July after he signed the balanced billing law. Reminding them that he was the son of a doctor, Dukakis said his father had often complained about malpractice costs at the dinner table, and added: "If we cannot get the malpractice problem under control - and fast - the effect on the quality of medical care in Massachusetts could be devastating."
Many doctors say "defensive medicine" - ordering tests and performing procedures beyond what is needed in order to deflect charges that everything possible was not done for a patient - is already being widely practiced in Massachusetts.
"That's not a problem?" asked Dr. Ronald Birkenfeld, a neurosurgeon who is a member of the advisory committee. "There's untold millions of dollars being spent to practice preventative medicine in this state that's being passed on to consumers because doctors are worried about being sued."
Birkenfeld said some doctors are leaving the state, while older physicians who want to cut back on their practices are instead retiring early because they cannot meet their insurance premiums with a reduced patient schedule. "We don't have any figures, but we know these things are happening," he said.
Like many other states, Massachusetts experienced a surge of malpractice suits in the mid-1970s, for various reasons. A major factor, according to malpractice lawyers, was a Supreme Judicial Court ruling that made it much easier for plaintiffs to present expert witnesses to support their negligence claims.
The increased incidence of lawsuits, along with other factors, prompted private insurers to drop out of the state's malpractice business in 1975 and created a crisis that forced the Legislature to set up the JUA. At the same time, the Legislature created quasi-judicial medical tribunals to screen all malpractice suits and weed out frivolous claims.
But these reforms have provided little relief from malpractice costs, doctors say, and they have annually sought help from the Legislature, with no success. Besides seeking a cap on awards for pain and suffering, the Massachusetts Medical Society has proposed bills that would tighten the rules for presenting expert witnesses and allow juries to hear evidence on whether plaintiffs have collateral policies covering personal injuries.
Another bill would place limits on contingency fees - the portion of a settlement or jury award that malpractice lawyers receive for their work. Usually the lawyers get at least a third of the amount paid to their clients, and in some cases make much more. Doctors contend that limiting these fees would serve as a further protection against frivolous suits and also place more money in the hands of the patients bringing the claims.
Not surprisingly, these proposals have met stiff opposition from trial lawyers, who have serious doubts about whether a malpractice problem exists.
Many lawyers see the renewed effort by doctors to pass the malpractice bills as a direct reaction to the bitter loss they suffered in the balanced billing fight. And they feel the Dukakis administration, in supporting the physicians, is trying to mend its fences in the medical community.
"My concern is that everyone was already calling this a problem," Licata said. "I think we have to sit down first and assess what data doctors are using to call this a crisis."
Despite their differences, however, both the lawyers and the doctors see the advisory committee as a positive force. "I don't think doctors and lawyers know very much about each other," said Licata. "The more you get them in the same room, the better it will probably be, if only to dispel the suspicions they have about each other.