Malpractice panel split on reform

4/28/2005

COLUMBUS - It is too soon to conclusively judge whether Ohio's two-year-old limit on jury awards in medical malpractice cases have had an impact, a special state panel said yesterday.

The two "no" votes on the Ohio Medical Malpractice Commission, both trial lawyers, preferred the panel stop there.

But the nine-member commission's final report goes on to say the yet-to-be-tested law will ultimately be at least part of the answer to a malpractice insurance crisis it says has prompted doctors to flee the state, retire early, or give up riskier procedures.

"We all realized early on we couldn't solve the problem, but I don't think it detracts from the significance of what we've done," said Ohio Insurance Director Ann Womer Benjamin, the commission's chairman.

In addition to the director, the temporary commission consisted of representatives of insurers, doctors, hospitals, and lawyers.

It was created under the same law that capped how much plaintiffs may collect from medical professionals, hospitals, or their insurance companies for pain, suffering, and other intangible, noneconomic damages in malpractice cases.

The Ohio Supreme Court has yet to consider the constitutionality of the law, which caps noneconomic damages at $500,000 in most cases or at $1 million in the most severe cases, such as those involving loss of limb or permanent disfigurement.

" Based on testimony and data from states that do have tort reform in place, the commission fully expects tort reform to have a stabilizing impact on the medical malpractice market in Ohio over time," the report reads.

After experiencing escalating premiums in recent years that appeared to peak with an average hike of 31 percent in 2002, two of the five major insurers in Ohio have raised rates an average of 12 percent so far this year.

"While the latest year's results are not yet available, continued movement toward profitability is expected, and the [insurance] industry could report an operating profit for 2004 in Ohio," reads the report. "If that occurs, this will be the first year since 1997 that Ohio's medical liability insurance industry has reported a profit."

The two negative votes, lawyers Steve Collier of Toledo and Hans Scherner of Columbus, have maintained the insurance market is cyclical, and that there are no data supporting the conclusion tort reform has or will play a role in the outcome.

They plan to issue their own minority report that will criticize the commission for not hearing from a single malpractice victim.

"It makes a big difference when you put a name and a face on those who are going to be affected, particularly when, I believe, you have a bill that was passed that probably won't have its intended effect," said Mr. Collier. "You'll have the dual problem of it not doing what you want it to do, yet it hurts people anyhow."

The commission did recommend that Ohio follow the lead of six other states in creating a "patient safety center" to analyze error reports from doctors in an attempt to prevent future error.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.