by Cara Gardner

The doctor-patient relationship is one of the most important in any person's life. But Diana Hager, a Spokane OB/GYN, says the fear of being sued has made trusting her patients more difficult.

"It's pretty miserable. You start to lose that trust in the patient-physician relationship and begin to hold everyone suspect. You start to spend time and effort to pre-defend yourself," Hager says, referring to ordering potentially unnecessary tests or scheduling multiple check-ups in case a patient later claims the doctor didn't do his or her job.

Apparently, some of Hager's patients have a hard time trusting her, too. In the past year, Hager has had four medical malpractice claims filed against her. Though she can't discuss any of the details of those claims, she says patients are suing doctors more often now because juries sometimes dole out huge monetary rewards to those who claim they've been treated negligently.

Four claims in a year is high -- even for a doctor specializing in obstetrics and gynecology, a specialty that averages 2.6 claims per career. And it's the only medical specialty where the physicians lose the majority of cases that go to a jury.

Like most doctors in the United States, Hager is a proponent of tort reform --

legislation that would put a cap on the amount a jury could award someone for pain and suffering from medical negligence. Doctors claim tort reform is needed to curb the ballooning costs of their insurance -- even doctors who have never had a claim filed against them are seeing double-digit percentage rate increases in their premiums. Delivering babies has proven to be expensive. Hager says in the mid-'90s, insurance coverage for her OB/GYN practice was around $35,000 a year. "Last year, in 2003, it was significant -- about $60,000 -- and this year it's $100,000," she says "we don't know what it's going to be next year."

Hager says because of the cost of their premiums, OB/GYN doctors are leaving the state, retiring early and getting choosier about which patients they see. (The two fields of medicine with the highest insurance costs are obstetrics and neurology.)

"We've lost seven OBs since 2000," Hager says of the Spokane medical establishment. "Either they did something else [in the field of medicine], or they left the state. I don't know how long I'm going to be here. I'm only 43, and I'd planned on a 20- to 30-year career, but it might only be a 12-year career."

Other states, like Idaho and Montana, have tort reform legislation in place. "All the OB/GYNs have an escape plan," Hager admits. "It means a lot of women are going to lose their physicians. One of the more immediate impacts I've seen with the loss of the OBs in the last three or four years is we're backed up on time. People have to wait longer in the clinic to get an appointment, and we're relying on more mid-level nurse practitioners and assistants to see more patients."

When the health care system is strained, rural areas are hit first and hit hardest. Hager says many family doctors practicing in outlying areas are cutting obstetrics from their practices in order to lower their overall insurance rates. That means pregnant women in some rural areas have to commute into Spokane for all their prenatal care. Former Republican congressional candidate Shaun Cross, an advocate for tort reform, drove the point home on the campaign trial by pointing out that there hasn't been a baby born in his hometown of Ritzville for more than 20 years.

The Big Judgment Mirage

All of this would seem to make tort reform a no-brainer, except for one powerful argument: If you tamper with a jury-based justice system that's more than 200 years old to cap juries in medical lawsuits, what kind of precedent does that set? Will a similar cap be sought by tobacco companies, polluting corporations or automobile manufactures? Critics say tort reform could open the doors for other pieces of legislation that limit victims' rights.

"I haven't seen any huge awards [in Washington]," says Sue Evans, spokeswoman for the Washington Trial Lawyers Association, a group opposed to tort reform. "The number of big verdicts in Washington is less than the number of fingers on my hands -- they just don't exist. When you look at the number of doctors practicing, and the average number of medical malpractice lawsuits filed, it's a small percentage."

Evans, like most opponents of tort reform, says insurance companies - in a slump because of bad investments and a weak economy - are riding the backs of doctors while trying to convince the medical field and the public that frivolous lawsuits are to blame. In "Operation Tort Reform," an article published in The Inlander last year, Scott Jarvis, the deputy commissioner of consumer protection with the Washington State Insurance Commissioner's Office, was careful not to take sides on the issue, but admitted he wasn't impressed with some of the tort reform rhetoric being used by doctor's groups and politicians: "From an insurance standpoint, Washington is not a state in crisis," he told The Inlander. "It's more expensive, but those are distinctly different issues. The number of [malpractice] claims has remained constant. The verdicts have gone up as a group, but in terms of excess, I think there were only half a dozen that were in excess of $1 million."

And in that same article, Tom Myers, president and CEO of Physicians Insurance Company, which provides malpractice insurance to 75 percent of practicing doctors in Washington state, admitted that tort reform legislation may not lower doctors' premiums. "Until [any new law's legality is] challenged in court and that process is completed, there is no assurance that there will be any rate drop in the premium," Myers said.

Still, Hager says the proof is clear to see: She knows doctors who have moved their practices to states with tort reform legislation in place, and they are paying less than half of what she currently pays for malpractice insurance. But in California, for instance, which tort reform advocates cite as a model state, premiums didn't plummet after reform was enacted. Premiums have, in fact, remained steady ever since the California legislature enacted laws requiring insurance companies to open their books, justifying each rate hike to the insurance commissioner -- much as public utilities must justify their rate increases. Now California insurance companies are restricted on how often they can raise rates and by how much.

Seeing Both Sides

Ken Coleman, a family practitioner and part-time ER doctor, is one of only four doctors in the small hospital serving Dayton, Wash. He's seen what the current health care system has done to rural areas, and he also happens to be a lawyer who represents injured patients in medical malpractice lawsuits.

"I've had physicians tell me every lawsuit is frivolous. In other words, 'We should never be sued.' It's like the big companies that pollute and don't think they should be held accountable. Suing is holding people accountable, and if they're gonna be sloppy, there's a system in place for that."

Coleman, like other lawyers, says that because juries overwhelmingly decide in favor of the doctor in malpractice cases, he can't afford to take on frivolous lawsuits.

"What [physicians] don't understand is that attorneys are taking care of patients that have been injured -- and doing it in a very selective process because juries are so hard on patients who bring lawsuits against doctors," he says. "Ninety-five percent [of physicians] are wonderful, hardworking, devoted. We're talking about a small minority [committing malpractice], but the good doctors are coming to the rescue of bad doctors."

Opponents of tort reform say instead of putting limits on juries, the legislature should put pressure on the state medical board to investigate doctors with multiple judgments against them. In fact, in a study conducted by Public Citizen, a consumer advocacy organization, Washington state's medical board rated among the 15 worst in the nation for the past 10 years in regard to disciplining doctors.

Coleman says physicians are often surprised to learn about the fact that a small number of doctors commit the majority of proven malpractice. He thinks that because insurance companies don't like paying out judgments, they have successfully convinced the medical community that tort reform is the real issue.

"This is [insurance companies'] fight, their issue. It's profit; it's bottom-line money," Coleman says. "Doctors are so smart, but they've unwittingly bought into this because they're being victimized by insurance companies."

Prescription for Politics

A federal solution to tort reform has been discussed for years, but rarely does a bill come close to being passed. There has also been talk about creating new insurance models with bigger pools of risk, but that hasn't gone far yet, either. States, however, have had better luck on the issue -- but not always through their legislature. Sometimes, interested parties have to go straight to the people, and that appears to be what's coming up in Washington state.

Right now, doctors' groups are in the process of gathering more than 187,000 signatures to put Initiative 330 on the 2005 ballot. I-330 would cap all non-economic damages (pain and suffering) at $350,000, and it focuses on protecting doctors, insurance companies, hospitals, nursing homes and the like from juries.

In response, consumer advocacy groups, the Washington Trial Lawyers Association and other opponents to tort reform drafted their own initiative: I-336, which doesn't ask for a cap on jury awards, but instead requests that any physician found guilty by a jury more than three times be automatically reviewed by the state medical board. I-336 also makes it harder for patients who have filed claims against a physician or medical institution to turn that into a lawsuit, thus attempting to weed out some of the frivolous cases.

But while the signature-gatherers compete for a place on the ballot, doctors and patients continue to deal with tort reform on a personal level.

"Every day is a hazard, every delivery is a hazardous time," says Hager. "People feel victimized if things don't go exactly perfectly, even though we discuss the potential complications ahead of time.

"I feel like I'm out there on a limb all the time," Hager adds. "I don't know if patients realize how personally they're affecting doctors. They're not just cashing in on insurance company money: It's affecting the physician and the physician's family. We're paying [in insurance] more than our salary -- more than we make."

Red Alert

This year, the American College of Obstetricians and Gynecologists (ACOG), an organization representing more than 40,000 OB/GYNs in the nation, declared a "red alert" on OB/GYN care in 23 states. Since 2002, the ACOG has listed Washington as one of the top 15 "states in crisis" because of a lack of tort reform.

In its report, the ACOG claims reasons for the crisis extend beyond high premiums for OB/GYNs: "The number of U.S. medical students entering the specialty of OB/GYN has declined for the third year in a row. In 2004, only 65 percent of the OB/GYN residency slots were filled by U.S. medical school seniors, compared with 86 percent a decade earlier."

Another ACOG report shows Washington's number of malpractice lawsuits and number of doctors who are leaving or limiting their practices to be slightly lower than the national averages. About 17 percent of Washington's OBs decreased the number of high-risk deliveries they were making last year as a result of liability insurance affordability, as compared to more than 25 percent nationally.

That ACOG report also found that in 12 Western states - some with tort reform in place - others without it), just under half of the lawsuits brought against doctors in 2003 resulted in no payout to the patient.

Publication date: 09/30/04

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