Measure 35: No.

Byline: The Register-Guard

Oregon's doctors are not crying wolf. Mushrooming malpractice insurance rates have precipitated a crisis that's forcing some physicians to abandon high-risk specialties such as obstetrics and neurosurgery. Other doctors are simply relocating to states where malpractice insurance costs less.

Frivolous lawsuits and out-of-control jury awards caused the problem, according to the docs and their allies in the hospital, nursing home and insurance industries. Their solution is Ballot Measure 35, which would cap jury awards for noneconomic damages at $500,000 in medical malpractice cases.

But Measure 35 assigns the overwhelming share of the burden for solving this excruciatingly complex problem to the victims of medical malpractice. That is manifestly unfair, and voters should soundly reject this one-sided measure, as they did a similar constitutional cap on damages in civil lawsuits four years ago.

Not only is there substantial disagreement about the causes and effects of the insurance crisis, but nothing in Measure 35 offers any guarantee that insurance rates will drop if it passes.

The only thing it guarantees is that Oregonians who are horribly injured by a reckless or negligent doctor will lose the right to have a jury determine the compensation they should receive for quality-of-life issues such as chronic pain, disfigurement, paralysis, blindness, loss of sexual function, sterility, damage to relationships and emotional suffering.

Measure 35's supporters insist that patients injured by medical malpractice would still be fairly compensated if the measure passes. It places no limit on actual economic damages - the quantifiable expenditures required by the injury such as the costs of surgery, physical therapy, medical equipment, special transportation and counseling, as well as loss of present and future wages.

In addition, the $500,000 cap on noneconomic damages has a cost-of-living index to keep pace with inflation. Supporters say the cap would protect insurance companies from unpredictable and ever-escalating jury awards, restoring the rate stability Oregon experienced before its previous $500,000 caps were ruled unconstitutional in 1999.

But the argument that patients are protected because they'll be able to receive full economic damages doesn't hold true for the young, seniors and women who do not work outside the home. Because young people often have not made career choices, their economic damages from lost earnings are generally minimal.

Homemakers, full-time parents and retirees usually do not have earnings affected by the medical error and resulting injury. If their treatment is provided through insu- rance, Medicaid or Medicare, noneconomic damages are the only compensation they'll receive.

Furthermore, caps on noneconomic damages have not been proven to effectively lower medical malpractice insurance costs. Even in states with caps, malpractice premiums continue to rise, in some cases faster than in states without caps.

Adoption of caps is by no means a quick fix, either. After the Nevada and Mississippi legislatures in 2002 passed caps for the first time, doctors there were stunned to learn that they would need to wait several years for any meaningful reductions in insurance premiums. After passage, the insurers announced that they would wait to reduce premiums until the statutory changes had been tested in court and produced "bottom-line results."

The contention of Measure 35 supporters that the insurance crisis is forcing Oregon doctors to abandon rural practices doesn't withstand analysis. An extensive study by Public Citizen found that the number of active doctors in rural Oregon actually rose 11.9 percent from 2000 to 2004.

Second, a new $40 million state program to subsidize malpractice premiums for rural doctors is providing premium reimbursements of up to 80 percent. More than 1,000 doctors who practice in rural Oregon already have signed up.

Measure 35's single-minded focus on jury awards and insurance rates shifts attention away from the fundamental reason there's a problem in the first place: medical errors. From the landmark 1990 Harvard Medical Practice Study to the 1999 National Institute of Medicine report, there is no shortage of damning data documenting the preventable medical errors that are killing and permanently injuring tens of thousands of Americans every year.

While progress is being made, health care experts readily acknowledge that the industry has been slow to identify and eliminate unsafe practitioners and modernize health care delivery systems to enhance patient safety. The idea that health care consumers ought to have ready access to reports on complaints filed against doctors and hospitals has met fierce resistance.

Oregon doctors could use legislative help with making insurance companies more accountable in how they set rates. Legislators also could examine programs in other states that have created supplemental malpractice insurance funds to provide a buffer when rates spike or companies stop issuing policies.

But keep in mind that malpractice costs represent less than 2 percent of total health care expenses, and malpractice insurance rates are notoriously cyclical.

Premiums are too high right now, but a cap that punishes the tiny percentage of gravely injured patients who need the largest settlements is the wrong cure.

Vote no on Measure 35.