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“Lawyers Can’t Deliver Babies,” according to a sign hoisted June 13 at a statehouse rally by New Jersey medical professionals shouting for tort reform as the cure for big medical-malpractice premiums. It looks like lawyers can’t deliver lawsuits, either. Not like they used to. Five-year statistics made available by the Administrative Office of the Courts last week show that the number of medical-malpractice complaints filed in the Law Division declined by 18 percent between 1997 and 2001. In the year ending last June 30, plaintiffs filed 1,613 malpractice complaints, compared with 1,971 in the 12 months ending June 30, 1997. The figures, requested by the Law Journal, are similar to ones the Association of Trial Lawyers of America is using to rebut claims that the upsweep in premiums is being caused by plaintiffs’ lawyers brandishing frivolous pleadings. “The fact is, there are fewer suits, not more suits as the doctors’ organizations would have you think,” says Abbott Brown, a partner in West Orange, N.J.’s Bendit Weinstock whose expertise on medical malpractice has been tapped by ATLA-NJ. Brown says his analysis of filings shows that the number of defendants per complaint has also declined. He attributes that, in part, to the Affidavit of Merit Statute, which prevents the naming of defendants without an expert’s substantiation. While the lawyers point to a decline in filings, doctors, hospitals and insurers counter that premiums are rising steeply because the dollar amount of awards is rising dramatically. “It’s not the sheer number of awards but the size of them,” says Shrewsbury, N.J., internist Jeffrey Felzenberg, who drew a giant cheer at the June 13 rally when he called for a law that would require the losers to pay legal fees in medical-malpractice cases. That would be the plaintiffs 85 percent of the time, he said. But is 85 percent accurate? According to a study published in March by Jury Verdict Research of Horsham, Pa., medical-malpractice plaintiffs around the country lost 62 percent of the cases that went to a jury in 2000. The statistics, based on the company’s database of 193,500 personal injury verdicts and settlements, also showed that the median settlement in medical-malpractice cases fell from $592,000 in 1999 to $500,000 in 2000. Another finding in the Jury Verdict Research report is likely to give succor to the doctors; it says that from 1997 to 2000 the median jury award rose from $503,000 to $1 million. “Doctors are being driven out of business by these ridiculous awards,” Burlington County Democratic Assemblyman Herbert Conaway, a Willingboro internist, told the rally crowd. During a legislative hearing on June 3, Patricia Costante, the president of Miix, the troubled medical-malpractice carrier, testified that the company paid $1 million or more in settlements or verdicts 26 times in 2001. In 1997, it did so only five times. This year it is paying awards of $1 million or more an average of once a week. In the noisy battle among lawyers, insurers, medical professionals and hospitals, interest groups are using these kinds of statistics to sway a Legislature that is being asked to adopt laws designed to bring down malpractice rates. It is not clear what the lawmakers will do this term with the dizzying number of proposals in the hopper, ranging from minor tinkering with insurance carriers’ reporting requirements to drastic limits on awards for pain and suffering. One bill would cap such verdicts at $250,000. (The New Jersey Hospital Association has a comprehensive list of bills on its Web site, http://www.njha.com/.) Almost a dozen legislators — goaded into brevity by a bright purple, three-minute, egg-timer on the podium — vowed to the doctors June 13 that they would do something to bring down rates, but they were a bit sketchy about what it would be. All sides in the debate agree that medical-malpractice premiums have risen dramatically in New Jersey in recent years, particularly for obstetricians and gynecologists. A survey in March by the 105-member NJHA reported that premiums for all physicians increased an average of 250 percent during the past three years and that 74.5 percent of the state’s hospitals say one or more of their physicians have been dropped from coverage. Almost one-third of the hospitals say physicians at their facilities stopped practicing or plan to leave because of lost insurance or high premiums, according to the survey. While the doctors blame lawsuits for their woes, Brown and former ATLA-NJ president Donald Caminiti say the culprits are mismanaged insurance companies and stingy HMOs. While it’s true that premiums for obstetricians have risen, the central problem for these doctors is loss of income because of the declining size of reimbursements from health insurers, Caminiti says. “We’re back to the days of drive-by deliveries,” he says. All sides also agree that a substantial factor in the New Jersey doctors’ situation is the collapse of Miix earlier this year. The company, which experienced huge losses in operations in other states, announced in May that it would stop writing policies in New Jersey before the end of the year unless it could reconstitute itself as a doctor-owned company in New Jersey. That left Miix’s 7,000 New Jersey insureds with the option of finding other carriers or accepting Miix’s offer to become a shareholder for $25,000 plus as much as $40,000 in annual premiums. Caminiti says the best solution to the problem isn’t tort revision, but the attraction of new carriers to New Jersey — an effort now under way by state Banking and Insurance Commissioner Holly Bakke.

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