http://www.sptimes.com/2003/06/18/Columns/A_rare_effort_to_trea.shtml

A rare effort to treat the cause, not just symptom

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By HOWARD TROXLER, Times Columnist
© St. Petersburg Times
published June 18, 2003
 

TALLAHASSEE - Doctors in white jackets are clogging the halls of the state Capitol this week. Yet not a single one of them brought a butterfly net, which is too bad.

The doctors are here because they are mad. They are mad about getting sued by their patients so often. They are mad about their insurance rates going up.

Mostly, they are mad at lawyers.

What the doctors want, more than anything else, is for the Legislature to pass a cap of $250,000 on "pain and suffering" awards in malpractice cases.

Let's be clear. Even under the doctors' plan, a victim of malpractice would still recover lost wages, medical bills and any other cash damages, without a particular limit. But the "pain and suffering" part of any case would be not more than $250,000, no matter what. No matter what actual pain and suffering occurred. The doctors say it has to be $250,000, no higher, for the system to work.

The Legislature is meeting in special session this week to try to work something out. In general, the House is on the side of the doctors, while the Senate is trying to slow down the stampede a little.

For example, the big news Tuesday was that the Senate now is willing to accept a higher, $500,000 cap, as long as it was "pierceable." That means the cap still could be exceeded in the very worst cases.

Pierceable. Actually, earlier they were using the term "penetrable," so this is probably better.

Here is the man-bites-dog angle. While the House has pretty much focused on sticking it to the lawyers, the Senate actually has produced a useful bill. Relatively speaking, it is the most useful bill in the past 20-plus years of malpractice "crises" in Florida.

Along with a $500,000 cap, the Senate tries to improve the situation three other ways: tighter rules for patient safety and doctor discipline; tougher standards for lawsuits; and changes in the insurance laws.

The Senate proposes a tougher standard for the so-called "expert" doctors-for-hire who travel around as witnesses, testifying that, yes-sir-ee-bob, this case sure looks like malpractice to me.

The Senate also wants to create a system of pre-screening malpractice cases. A panel of five members (two doctors, two lawyers and a consumer advocate) would render an opinion on the merits of each case. That opinion could be used as evidence during the trial.

(Another idea floating around, but not yet adopted, would be a "three strikes" rule for lawyers - if they were cited for filing three frivolous malpractice lawsuits, they couldn't file any more.)

As for the insurance companies - who have a largely overlooked responsibility in all this, and who have managed to get the doctors totally focused on the lawyers - they, too would face tighter rules.

Excess insurance profits would have to be refunded. Insurance companies would have to roll back rates. If insurance companies failed to comply, the state would create its own, last-resort insurance fund.

It is dry, technical stuff, but the Senate's bill at least tries to use the power of the Legislature to solve the problem instead of simply to make interest groups feel good.

These are rarely used policymaking muscles, and they are a welcome sight. More often in the modern Legislature, the members either just pass bills written or approved by lobbyists.

Here, there are a lot of things in the Senate's bill that both sides hate. Meanwhile, the Senate has taken a step toward the House's idea of some kind of cap. The makings of a compromise are in the air.

A flat cap of $250,000 as favored by doctors, the governor and a lot of the Legislature's leaders is simplistic and unjust. There are some cases that deserve to go beyond the cap. The solution ought to weed out undeserving cases, not to punish the deserving.

The doctors intend to win their cap anyway, by sheer force. If they do not win, then some people predict a collapse of the session, and the need for yet another special session down the road. But maybe not. Maybe, at some point, the Legislature will tell the two sides that the private little war has gone on long enough, and it is time for the people of Florida to step in and settle things.