Measure 35: Should payouts in malpractice cases be capped?

Byline: GUEST VIEWPOINT By Cristin Babcock For The Register-Guard

If to be liberal is to value the welfare of the community over selfish interests, then self-described liberals should recognize the merits of Measure 35. This is not a matter of dueling BMWs, as portrayed by The Register-Guard. This is a matter of how to responsibly use Oregonians' resources - their health care dollars and taxes.

Money spent on liability insurance and huge jury awards comes out of the community's health care dollars. Every malpractice award is charged back to physicians, who pay higher insurance premiums. Physicians must pass that expense on to patients and their insurance companies.

Physicians do this by raising the rates charged to people with health insurance and those who pay for their services out-of-pocket. As costs rise, many patients are forced to delay treatment, or forego treatment altogether. This trend will affect first the poor and vulnerable.

The Register-Guard's Oct. 2 editorial reported that the state is subsidizing rural physicians' liability insurance at a cost of $40 million a year. The subsidy is needed to keep physicians practicing in rural areas. Those millions of dollars are spent by a state that is struggling to educate its children and provide health care for the poor.

The number of patients covered by the Oregon Health Plan has been slashed for the second year in a row. Measure 35 will help slow the rising cost of liability insurance, allowing the state to put resources into direct assistance to citizens.

The editorial claimed that only 2 percent of the increase in health care costs could be attributed to the rise in liability insurance premiums. That statistic is true only if the figure represents all health care spending. However, when addressing the cost of physician visits, the increased cost of liability insurance represents a much bigger number. Every patient pays a small portion of that increase at every visit.

Though the high risk specialties, such as my own, make the news, all physicians have seen dramatic increases. Every physician visit costs Oregonians more because of the cost of liability insurance. As an obstetrician-gynecologist, my insurance rates have risen 15 percent to 25 percent each year for the last four years, going to $58,000 a year from $28,000.

While most people will not become pregnant or need neurosurgery, health insurance premiums account for those who will need those services. Measure 35 will not completely solve the crisis of increasingly unaffordable health insurance, but it will help to slow the increase due to physician services.

The trial lawyers claim that high jury awards drive out "bad doctors." Unfortunately, bad outcomes happen to all health care providers. The cost to providers, not to mention the mental trauma of a lawsuit, drives physicians out of practice, depriving the community of their expertise.

A recent lawsuit in Eugene against an obstetrician-gynecologist illustrates the problem.

The lawsuit requests $10 million in economic damages and $13 million in noneconomic damages - $23 million in all. If this suit were to drive out the physician involved, Lane County would lose one of its pre-eminent advocates of alternative therapies, with expertise in herbal, nutritional and non-Western options. That would be a substantial loss. Measure 35 would limit that total request to $10.5 million.

Oregon physicians support awards for economic damages such as lost wages, medical expenses and future earnings. Contrary to claims by the malpractice lawyers, Measure 35 would allow for economic damage awards that calculate expenses for substitute domestic services for patients who work inside the home.

In this era of lotteries and jackpots, we have all become inured to stories of people winning mega-millions. However, the mega-millions in excessive jury awards come out of the pockets of all who pay for medical care. The elephant in the living room are the fees of 30 percent to 40 percent charged by trial attorneys. The windfall is not to the injured patient, but to the attorney.

There should be fair compensation for bad outcomes with economic damages, and compensation for noneconomic damages. Measure 35 will not solve the escalating cost of liability insurance or health insurance premiums. Measure 35 will place moderate and sensible limits, helping to slow the juggernaut of rising prices.

Cristin Babcock, M.D., is an obstetrician-gynecologist practicing in Eugene.