The Senate Health, Education, Labor, and Pensions and Judiciary Committees held a joint hearing on February 11 to examine the role of medical litigation in patient access to health care. Senators and witnesses disagreed as to the cause of the rapidly increasing medical malpractice premiums.
Health, Education, Labor, and Pensions Committee Chair Judd Gregg (R-NH) opened the hearing by discussing the problem of increasing medical malpractice premiums in his home state, particularly with respect to obstetricians-gynecologists. “In northern New Hampshire, the doctor in that area, and there is only one, has seen her premiums rise from $38,000 to $138,000 in one year,” he said, adding that the physician was finding it difficult to practice and may be forced to retire.
Sen. Gregg pointed to “frivolous lawsuits” as the reason for the increase in premiums, noting that nearly 70 percent of all lawsuits never receive payments because the claims are unfounded.
Ranking Member Edward Kennedy (D-MA) disagreed. “The reasons for sky-high premiums cannot be found in the court rooms,” he said, pointing to the insurance companies and citing studies that have shown that the cost of medical litigation constitutes less than two-thirds of one percent of the cost of malpractice premiums. “To cap compensatory damages is not only unfair to the victims of malpractice, but it does not lower premiums,” he said, adding, “It’s absurd to suggest that $250,000 is fair compensation to a person confined to a wheelchair for life.”
While also opposing caps on damages, Judiciary Ranking Member Patrick Leahy (D-VT) said, “All of us agree on the basic issue that our health care system is in crisis,” but he noted that disagreement arises on the best way to address that crisis.
Judiciary Committee Chair Orrin Hatch (R-UT) said that his main concern was that “doctors are leaving their professions.” He added, “We have cases where women just don’t have access to obstetricians. Some have to travel hundreds of miles to get care and treatment.”
The committees heard testimony from a wide range of witnesses, several of whom discussed their personal stories as victims of medical malpractice.
Appearing on behalf of the American College of Obstetricians and Gynecologists (ACOG), Dr. Shelby Wilbourne testified in support of placing limits on non-economic damages in medical liability lawsuits. As a result of increasing premiums in Las Vegas, Nevada, Dr. Wilbourne left his 12-year obstetrics and gynecology practice and moved to Maine where premiums were less expensive. Citing a recent ACOG survey, he said that 86 percent of obstetrician-gynecologists in Las Vegas changed their practices and 30 percent stopped practicing obstetrics altogether as a result of increasing premiums. “Who loses in the environment?,” he questioned, answering, “Women, good doctors, patients, communities, businesses, and America.”
“When ob-gyns cannot find or afford liability insurance, they are forced to stop delivering babies, curtail surgical services, or close their doors,” stated Dr. Wilbourne, adding, “Now, women’s health care is in jeopardy for the third time in three decades. This crisis will only end if Congress acts.”
Jose Montemayor, Commissioner of Insurance for Texas, presented the committees with a report regarding the availability and affordability of medical liability insurance in Texas. According to the report, the primary cause of increasing premiums is loss trends, or the increasing amounts paid for claims by insurance companies. “Texas has $1.60 in losses for every dollar in premiums…, with Texas carriers realizing a negative return of 3.3% for 2000,” he said. “What can never be fully conveyed in the statistics, though, are the accounts from people who suffer from lack of access to patient care,” he added.
However, Jay Angoff, a former insurance commissioner for Missouri, disagreed with the characterization that increasing claims have led to increased premiums. He noted the cyclical nature of the insurance industry, pointing out that this is the third such crisis in the last 30 years. “The first was in the mid 1970’s, and the second was in the mid 1980’s. Some states enacted limits on liability….But whether or not a state enacted such limitations, malpractice rates rose during the mid-80’s, fell during the 90’s, and are rising sharply today,” he said. Rather than capping damages, he recommended three other solutions: repealing the anti-trust exemption, giving physicians the ability to challenge rate increases, and changing state laws to allow insurance commissioners to prevent excessive rate increases. “The reforms I have outlined can both reduce the fluctuations and, particularly if the insurance industry’s anti-trust exemption is repealed, reduce the level of malpractice rates over the long run. In contrast, limitations on liability have been demonstrated to do neither,” he said.
Linda McDougal told the committees about her personal story. After being diagnosed with breast cancer and undergoing a double mastectomy, she was informed by her physician that she had been erroneously diagnosed with cancer. Ms. McDougal urged the committee not to enact a “one-size-fits-all” policy. Noting that her suffering and disfigurement fell into the non-economic category, she urged Congress to allow individuals the flexibility to pursue claims in cases where they have been harmed.
