Malpractice reform law called a good first step

Doctors pushed for state
legislation but do not
get all that they sought

Staff Writer

Malpractice reform law
called a good first step
Doctors pushed for state
legislation but do not
get all that they sought
Staff Writer

After almost two years of debate which included the first job action by physicians, a medical malpractice reform bill was recently signed into law by Gov. James E. McGreevey.

The name of the new law may be more ambitious than the content. Called the New Jersey Medical Care Access and Responsibility and Patients First Act, the bill creates a temporary fund to subsidize high-risk physicians’ liability insurance premiums and gives judges more authority to lessen exorbitant jury awards. The law does not place a cap on damage awards for pain and suffering, something physicians say is crucial to curbing what they believe to be frivolous lawsuits and outrageous awards.

State Sen. Raymond J. Lesniak (D-Union), one of the sponsors of the bill, said the decision on pain and suffering awards should be left to the courts, not the Legislature, and if the evidence is compelling enough to warrant it, regardless of the overall crisis facing doctors, the awards should reflect the injury.

Dr. Ben Weinstein, senior vice president and medical director of CentraState Medical Center, Freehold Township, said it is a necessary start, but it will not create a market for malpractice insurance. Still, he said, the signing of the law is important in that there is finally recognition of the crisis and there is a provision in the bill to study tort reform.

Weinstein said that without real reform specialists will not be able to afford to practice in the state.

"I’ve got a staff of 400-plus doctors here who have been watching this very carefully. We’ve lost two primary-care doctors who could not continue to practice. We’ve lost a gynecological oncologist, the only one we had, and we’ve lost a general surgeon, a gentleman who has never lost a case," he said. "There are 62 neurosurgeons in the state at this moment and 90 hospitals with 20 to 25 percent fewer obstetricians delivering babies than we had three years ago."

Dr. Norman Back, chairman of CentraState’s Ob/Gyn Department, also thinks the new law is a step in the right direction, but does not go far enough.

"The best thing about the bill is that the governor is going to form a committee to research solutions to the problems," he said.

The law allows for the creation of a 17-member Medical Care Availability Task Force to examine medical malpractice insurance, including the use of lawsuit ceilings. The task force will have two years to study the issues and come back with solutions.

But, Back said, "I don’t see this bill having any immediate benefit. I don’t think it will help in any short-term way. How is this money going to be divided up? How are we going to pay our exorbitant malpractice rates next year? What is the Legislature gong to do if there is a 20 to 50 percent drop in specialists in the state?"

The plan is designed to help doctors pay premiums out of a $78 million three-year subsidy fund. The law allocates $17 million a year to doctors who have seen the highest premium increases.

The subsidy fund will be created through a $75 fee on doctors, chiroprac­tors, dentists, optometrists and lawyers, as well as a $3 per employee fee on all employers covered under the state’s Unemployment Compensation Law. It would allocate $6.9 million to hospitals to provide charity care, $1 million to reim­burse obstetricians and gynecologists who agree to practice for four years in under­served areas, and $1.2 million to provide funding for the FamilyCare program to pregnant women who cannot afford health care but do not qualify for Medicaid reimbursement.

Weinstein has a problem with these aspects of the law.

"What’s disturbing about this fund is that $17 million would go to doctors in the high risk fields, but we’re losing doc­tors across the spectrum. It is begging the question of providing a wide spectrum of care," he said.

In addition, he said, the other things that were tacked on to the bill have no bearing on malpractice insurance.

"The $1 million for student loans is just another tax and $1.2 million doesn’t even have a home at this time," he said.

According to Weinstein, physicians who become involved in malpractice cases want quicker case resolution and less at­torney costs.

"The most common thing is we go all the way up to discovery and just before trial the doctor is released. This is very chilling on high-risk specialties. Outcomes which are unfavorable are not uncommon. A bad outcome is not equal to bad medicine," Weinstein said.

The law signed by McGreevey also ex­pands the Good Samaritan Act so that health care professionals who respond in good faith and provide emergency assis­tance above and beyond their normal duty are protected from liability and re­quires greater reporting standards to the State Board of Medical Examiners. But the Good Samaritan Act only protects doctors in a hospital or medical facility. It does not protect a doctor if, for instance, he stops at the scene of an accident.

"I personally have stopped at accident scenes, but this does not cover me," Weinstein said.

The law makes reforms to the medical malpractice liability insurance system such as allowing doctors to join together in purchasing alliances for greater nego­tiating power over insurance rates, re­quiring that insurers cannot increase medical malpractice insurance premiums on health care professionals if their mal­practice suit is dismissed and establish­ing a three-year subsidy fund of $26.1 million a year.

Weinstein said the insuring company should not increase the premium of any physician just based on a claim.

"If you are named in a suit the insurer will use that as a negative rating against you and raise your premium," he said, noting once more that tort reform is re­quired. "To say that caps don’t work is to have your head in the sand."