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“Patients almost always want to sue in the District; doctors almost always want to defend in Maryland.” — Jacobson v. Pannu,D.C. Court of Appeals (2003) Doctors, especially those in high-risk practice areas such as obstetrics-gynecology and neurosurgery, are leaving the District of Columbia. There is no secret why: high malpractice insurance rates. This year, for example, according to rates published by a leading medical malpractice insurer in the region, an ob-gyn in the District can expect to pay $108,290 for malpractice insurance. That same ob-gyn in Maryland, however, would pay almost $12,000 less for the same coverage, and in Virginia, less than half that amount at $52,567. Are these significantly higher malpractice rates indicative of some epidemic of negligence spreading through the District’s hospitals and physicians’ offices? Of course not. No one disputes the fact that the District’s health care providers are just as competent as their colleagues in Virginia, Maryland, or any other state for that matter. Despite all this, Jack H. Olender recently argued in Legal Times[" Tort Reform or Deform for D.C.?," May 26, 2003] against the need for medical malpractice caps in the District. We rebut Olender’s specific assertions below. But, first, it is important to note that the reason for D.C.’s high rates is clear: Unlike the neighboring jurisdictions of Maryland and Virginia, there are no caps on medical malpractice damages in the District. Further, the District provides a relatively generous statute of limitations for medical malpractice actions: three years from the time the patient knew of or should have known about the malpractice, which commonly is referred to as the “discovery rule.” Under this rule, the limitations period in a particular action may not even begin to run until years after the alleged malpractice took place. And to top it off, District jury awards can be quite substantial. In fact, according to data compiled by the National Practitioner Data Bank, the District of Columbia ranks second in the nation in terms of median payouts (which include verdict awards and settlements) for medical malpractice cases from 1990 through 2001. TWICE THE DAMAGE? The average payout in the District during that same period of time was $425,131, whereas in Maryland it was only $244,847 (58 percent of D.C.’s), and in Virginia, $192,441 (45 percent of D.C.’s). There is no evidence to suggest, however, that when malpractice occurs in the District, it is on average nearly twice as damaging as when it occurs in Maryland or Virginia. In Maryland, a patient who sues her doctor not only must first consider arbitration, but also have a doctor competent in the relevant area of medicine evaluate the case and sign a “certificate of merit” attesting to the presence of malpractice before the case can even be filed. Such a requirement obviously helps to weed out frivolous lawsuits. Should the case go to trial with a verdict returned in the plaintiff’s favor, the award amount for noneconomic damages (pain and suffering) currently will be capped at $620,000 (the cap increases $15,000 every Oct. 1). Maryland, however, does not cap economic or punitive damages. Maryland also imposes a three-year statute of limitations, and recognizes a discovery rule. But, as opposed to the District’s potentially open-ended limitations period, in no event may Maryland’s limitations period extend beyond five years after the alleged malpractice took place. In Virginia, although arbitration is not required, both parties may elect to have their case heard before a medical malpractice review panel before litigating in the circuit courts. Virginia, like Maryland, also provides a cap, but it does so for all damages, including economic damages. The current cap is for $1.65 million (and will eventually increase to $2 million), which includes a cap of $350,000 on punitive damages (which rarely are awarded in medical malpractice cases, regardless of jurisdiction). Finally, the applicable Virginia statute of limitations for medical malpractice cases is only two years, and unlike the District and Maryland, Virginia does not recognize the discovery rule. Given the above, Dr. K. Edward Shanbaker, executive director of the Medical Society of the District of Columbia, in a letter this past January urged Mayor Anthony Williams to support medical malpractice tort reform for the District. Mayor Williams responded in March that he, too, has “received anecdotal evidence of doctors retiring early or leaving the District due to the rise in malpractice premiums and other factors,” and accordingly, has directed Lawrence Mirel, commissioner of the Department of Insurance and Securities Regulation, and James Buford, director of the Department of Health, to review medical malpractice tort reform legislation for introduction to the D.C. Council. According to the mayor, “When it comes to tort liability, our providers here are at a disadvantage.” POINT AND COUNTERPOINT In his Legal Timespiece, Olender made four points to defend the current scheme. We respond to them here. Point One:There are not too many medical malpractice lawsuits in the District, and the numbers are decreasing. Response:Olender misses the point. It is not simply the number of cases filed — which have not steadily decreased but have occasionally increased since 1992. Rather, it is the potential for high verdict awards, especially when compared with neighboring jurisdictions, that is relevant. And as we noted above, the District is nearly at the top in the nation when it comes to median verdict awards in medical malpractice cases. In any event, merely because there have been fewer filings does not mean that fewer cases exist. Further, anycases that are filed as a result of “forum shopping” are still too many. Point TwMalpractice insurance premiums are not too high in the District. Response:If the rates charged in neighboring jurisdictions are any indication, Olender simply is wrong on this point. Point Three:Caps on medical malpractice damages will not reduce premiums. Response:Olender is quick to cite the “business cycle, mismanagement, and greed” of insurance companies as factors that would negate the effectiveness of medical malpractice tort reform on reducing malpractice premiums. But if caps have no effect on medical malpractice premiums, then why are the rates in Maryland and Virginia so much lower than in the District? In all events, broadsides directed at insurance companies, or for that matter the contingent fees charged by plaintiffs’ attorneys, are counterproductive and miss the ultimate point: how best to serve the interests of patients in securing quality health care while still providing a reasonable remedy when mistakes are made. Furthermore, even if caps will not reducepremiums, they most certainly will slowtheir rate of increase, inasmuch as they will bring more stability and predictability to the volatile medical malpractice insurance market. Point Four:Physicians are not fleeing the District of Columbia. Response:The statistic Olender cites in support of this premise — the physician/citizen ratio in the District — is misleading on two counts. First, District doctors do not treat just District residents. Their patient base is much larger, encompassing the entire Washington metropolitan region. Second, a significant number of doctors in the District are government doctors and researchers who do not treat patients at all. Given this, the statistic Olender cites is an irrelevant indicator as to whether physicians are “fleeing” the District. They certainly are leaving. A UNIQUE TORT Lost in much of the current debate regarding medical malpractice tort reform is the recognition of the rather unique nature of this tort, which lies at the intersection of science, law, and the art of medical practice. Consequently, just to defend a medical malpractice case necessarily is an expensive endeavor. For instance, the D.C. Court of Appeals, quoting Superior Court Judge Ann O’Regan Keary, wrote in 1997 in Eric T. v. National Medical Enterprisesthat, “as a type, medical malpractice cases . . . present one of the most burdensome types of cases for the judiciary to deal with.” They are complex and expensive cases to litigate that often can drag on for years. Also, one often must retain numerous expert witnesses to opine on cutting-edge scientific issues that often are not settled in science, and to express opinions as to whether certain sophisticated medical procedures met national “standards of care,” which, not surprisingly, often also are ill-defined given the very nature of the practice of medicine. It also is worth mentioning that over the past decade, jurors’ attitudes toward doctors in malpractice cases have changed just as, in this era of managed care, the patient-physician relationship has changed. Where jurors are now more inclined to empathize with a patient-plaintiff, they also have become more likely to assume that the doctor-defendant is wealthy with a healthy insurance policy paying for the defense and protecting the doctor’s personal assets. Consequently, where they do find liability, they feel more inclined to award high damages — sometimes for millions of dollars — for such intangibles as pain and suffering. Although this litigation lottery still exists in the District, Maryland and Virginia wisely have tried to end it. The current medical malpractice insurance crisis is not unique to our region. It is national in scale. Indeed, the U.S. Congress, at the urging of the president, recently considered legislation that would have imposed caps on noneconomic and punitive damages on all state and federal medical malpractice cases. That bipartisan legislation succumbed to Democratic opposition in the Senate in early July. The District’s Democratic mayor, however, now is considering introducing similar legislation for the District of Columbia. Not only is it the right thing to do, but also it must be done if the District hopes to keep its health care providers. Joseph Montedonico is a principal at D.C.’s Montedonico, Belcuore & Tazzara and author of the treatiseMedical Malpractice and Health Care Law in the District of Columbia (Butterworth, 1987). Mark H. Allenbaugh is an associate at Montedonico, Belcuore and teaches at the George Washington University. They can be reached at [email protected]and [email protected], respectively.

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