Local doctor, lawyer clash on tort reform

With the election of a new Republican governor, Republican lawmakers are now seizing on the opportunity to pass a stricter tort reform bill, after spending the last two years compromising on numerous provisions with former Governor Bob Holden.

Introduced by State Rep. Richard Byrd (R-Kirkwood), the proposed bill would eliminate "joint and several liability," would end "venue shopping" by requiring that a suit be filed in the judicial circuit where the alleged injury took place and would restore a statutory cap of $250,000 for a single incident which would not be annually adjusted for inflation.

Local physician Dr. Alan Chen said that a stricter tort reform will not only make a difference in rocketing medical malpractice insurance premiums but may also prevent people from "making a fortune out of misfortune."

"It's really important that we have some kind of tort reform," said Chen. "The cost of insurance has stopped doctors from doing what they were trained to do."

Chen cited an obstetrician in Poplar Bluff who had to quit practicing because of rising costs as well as a local surgeon that was not able to join hospital staff because of a 900 percent, or $207,774 total, increase in his medical malpractice insurance annually as examples of how doctors are struggling to pay rising costs.

"That's just ridiculous," stated Chen, who provided figures which show that a general surgeon practicing in Dade County, Fla., will pay $277,241 per year in medical insurance while his counterpart in Nebraska will only pay $10,976.

"Are we saying that the general surgeons in Dade County are so incompetent that they are 90 times more likely to make a mistake?," said Chen. "That just doesn't make sense."

Chen also said that the current system doesn't encourage changing for the better.

"The current atmosphere prevents the people who make mistakes from admitting them so that improvements can be made and the same mistake avoided next time," Chen said. "Everyone get in the courtroom and they all stiffen up and nothing is being changed for the better.

"It's just not really improving the care in any way and it does not effectively remove repeat offenders who may continually do this kind of thing," continued Chen. "It doesn't help the patient and it doesn't punish the offender and it doesn't improve the medical care."

In a 2003 letter to Chen, Holden stated his reason for not signing a tort reform bill as "reforms that address the needs of Missouri's physicians should not be compromised by other industries seeking special interest protections." Opponents of the newest tort reform proposal are using the same argument because the bill would not only apply to medical malpractice suits, but to suits brought against any entity -- including cities, schools, nursing homes and private corporations.

"One of the objections of tort reform is that people say you really restrict people from having justice," Chen said. "That's not quite true. It's just that it prevents most people from taking advantage of the system.

"The people who really should receive the compensation are not getting it and there are a lucky few out there who are making a fortune out of misfortune."

Dexter attorney Steve Holden said that "generalizing" tort reform is one of the biggest problems in the system. He feels that provisions should be looked at individually, instead of as a whole.

"I believe there are a lot of areas that need reform, but I believe that some of it needs to go both ways," said Holden. "Some areas may need stronger reform, but I think others need to go the other way because I have seen a lot of bad things happen to people and they can't get compensation for it."

Holden said that it really depends on what side you are on as to whether tort reforms can be seen as good or bad.

"Imagine that you take your child into the emergency room for a sore throat and that doctor does something to that child that should have been a simple procedure but it turns out your child now has brain damage or a severe handicap," Holden said. "Would you want to be told that your maximum recovery is only going to be a certain amount of dollars?

"I think it is a very personal decision. The best thing to do is ask yourself what might happen in your life and what you would want done if that were to happen to you."

Holden said that because of very strict eligibility requirements in order to file a medical malpractice lawsuit -- such as a short statute of limitations and needing a signed affidavit from another physician stating the opinion that medical malpractice was the cause of the injury -- that there is "almost no such thing as a frivolous medical malpractice lawsuit." He said that insurance companies are more to blame for rising costs than lawsuits.

"Insurance companies really need to be looked at because of these outrageously high coverages," Holden said. "And those high prices are the result of stock losses in the past four years, not about the number of claims filed against a doctor."