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Rivaling Bush v. Kerry for bitterness, doctors and trial lawyers are squaring off this fall in an unprecedented four-state struggle over limiting malpractice awards. The volatile issue is in voters’ hands and each side is desperate to win, spending millions of dollars to make its case and portray the other side as greedy. In all four states—Florida, Nevada, Oregon and Wyoming—doctors and health insurers pushed to get measures on the Nov. 2 ballot, and trial lawyers are campaigning hard for a “No” vote. “We have open warfare here with the personal injury lawyers,” said Larry Matheis of the Nevada State Medical Association. “It’s a national test of whether, in trying to solve the devastating medical liability crisis, we have to go directly to the people.” Never before have voters in so many states simultaneously had a chance to weigh in on the debate. The doctors say caps on awards are needed to rein in soaring insurance rates that otherwise would drive many of them out of high-premium states and high-risk specialties. The lawyers say there should be tighter controls on insurance companies, not on juries that may be a victimized patient’s only hope for justice. “The insurance industry, the drug industry, the hospital and nursing home industry have far more money than people injured by medical malpractice and their lawyers,” said Carlton Carl of the Association of Trial Lawyers of America. “But if there’s a level playing field, I have no doubt Americans will vote to preserve their legal rights.” Tenacious lobbying The American Medical Association (AMA) has been lobbying tenaciously for federal legislation, supported by President Bush, that would place a nationwide $250,000 cap on noneconomic damage awards. Those are awards for pain and emotional distress as opposed to awards for medical bills, lost wages and other quantifiable costs. The federal legislation has passed the Republican-controlled House but not the Senate, where the trial lawyers’ Democratic allies—although in the minority—have been able to block it. “It seems to us that the thing to do is go straight to the people who want and need this reform,” said Dr. John Nelson, the AMA’s president. “Federal legislation would be easier, but a state-by-state approach is just as effective.” Caps of varying types have been implemented in 27 states. The AMA contends that most of the other 23 states face a “medical liability crisis” in which doctors are moving away, retiring or scaling back essential, high-risk services because of rising insurance costs. The four ballot proposals differ from each other: Wyoming’s is a proposed constitutional amendment that would allow lawmakers to place a not-yet-determined cap on noneconomic losses. Oregon’s would cap noneconomic awards at $500,000. In Florida, where lawmakers imposed a $500,000 cap last year, the proposal would limit lawyers’ share of any malpractice settlement to 30% at most, less in the case of large awards. Nevada’s measure would remove all exemptions from an existing $350,000 cap, and also limit attorney fees. Doctors depict the fee limits as an appropriate swipe at greedy lawyers. The lawyers say fee limits would deter them from handling complex malpractice cases on behalf of low-income clients.

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