The high cost of malpractice

Posted: Jul 19, 2004 12:00 AM

CHARLESTON, S.C. - Inside the Beltway, the insider debate is whether a Southern drawl will be enough to charm Southern voters to change their colors from red to blue. Here in the Low Country, where politics is local but rarely low, you hear more talk about health care and how much it costs.

John Edwards portrays himself as a rags-to-riches self-made man, but how he made his money as a trial lawyer, persuading juries to award enormous sums for pain and suffering, infuriates a lot of voters - and not just the doctors and insurance companies. The true costs of these awards - much of which goes to lawyers who have never known pain or suffering - is beginning to seep into the consciousness of those who actually pay the costs, namely, people like you and me.

Surgeons and obstetricians are leaving or curtailing their practices, fleeing the increasingly high cost of malpractice insurance. Premiums for obstetricians around here have more than tripled in four years, to an average of $37,600 - and South Carolina rates are in the low range. A neurosurgeon who practices in the nation's capital says premiums cost as much as $300,000 a year.

A 30-minute "infomercial" sponsored by the Doctors for Medical Liability Reform, a national organization, has been telecast more than 50 times in South Carolina, charging that soaring malpractice insurance rates due to frivolous lawsuits and outrageous financial awards are depleting the ranks of the state's doctors, and discouraging young doctors from entering the crucial specialties.

One physician who practices in a rural South Carolina county says five doctors have left his practice, and the cost of insurance was one of the reasons. Obstetrics residencies at the highest levels, at teaching institutions such as Medical University of South Carolina and Palmetto Health Richland, are going begging.

Julius Leary, a 50-year-old obstetrician/gynecologist, no longer delivers babies; this reduces his malpractice premiums. Neurosurgeons at one medical center no longer accept trauma calls because they fear the whim of punitive juries. One county has reduced its neurosurgery coverage to 10 days a month.

The doctoral counteroffensive is felt in the spirited race between Inez Tenenbaum, a Democratic lawyer, and U.S. Rep. Jim DeMint, a Republican, for the seat of Sen. Ernest Hollings, the retiring Democrat. Mr. DeMint has signed a pledge to vote for capping pain-and-suffering damages in medical malpractice suits at a quarter-million dollars. Ms. Tenenbaum hasn't; she told the State newspaper in Columbia that the pledge was "a silly political gimmick."

But the high cost of malpractice insurance is no gimmick if fewer doctors deliver babies or become neurosurgeons. Dr. Chris Hawk, a prominent Charleston physician, enlivened the debate earlier this year when he proposed that doctors should not treat lawyers who bring suits against doctors. He concedes that the idea may be "repulsive," but he's serious (maybe even dead serious). He argues that such a policy is ethical as long as no one is deprived of emergency care and a doctor gives the patient 30-day notice of termination. He has told one malpractice lawyer among his patients that she should look for another doctor. "It's the only way I know she will not sue me," Hawk argues. Says a neurosurgeon: "It's too bad doctors aren't allowed to strike. That would get everybody's attention."

Both sides in the debate can give as good as they get. If the trial lawyers are better-organized and have more money than doctors, there remains the constituency - and it's a big one - of would-be mothers and others alarmed by the way high malpractice rates influence the availability and cost of health care. The arguments often descend into appeals to raw emotion, much like a good trial lawyer's assault on the sentiments and sensations of jurors.

In one famous summation, John Edwards became a channeler, listening to voices that only he and Shirley MacLaine could hear. "I feel her presence," he told a jury of a little girl who was born brain-damaged, the victim, he said, of a doctor's malfeasance. "She's inside me and she's talking to you. . She says: 'I don't ask for your pity. What I do ask for is your courage and strength.' " (She was remarkably well spoken for a child so young.) On behalf of another child brain-damaged at birth, he produced witnesses who testified that the girl might live for more than 40 years. The jury awarded $23 million. The child died of her injuries when she was six years old.

A neurosurgeon, shaking his head at this excess of commercial compassion, showed me a cartoon depicting the two Johns in campaign mode, captioned, "Vote for me or I'll sue you." Clever, but a growing number of South Carolinians think it's not really funny.