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Is There a Doctor in the House?

To insure a neurosurgeon in Illinois you have to pay $250,000.

By ARICKA FLOWERS

lllinois doctors are flying the coop. The exodus is so prevalent that a billboard on Interstate 80-55 reads, "Drive Carefully. No brain surgeon in Will County." Can that really be true? Apparently so.

Neurosurgeons and obstetrician/gynecologists are leading the pack of doctors fleeing the state due to what they call "skyrocketing" malpractice insurance rates. The OB/GYN Crisis Coalition reports that 11 percent of obstetricians and gynecologists have stopped practicing in Illinois citing medical liability concerns. The same survey found that 80 percent of OB/GYNs are accepting fewer high-risk patients and more than half say they are thinking about abandoning their practices altogether. Where does that leave Illinois patients?

"Access to care is a very important issue for patients in Illinois," explains Rep. Judy Biggert (R-IL). "Illinois is one of twenty states where doctors are leaving because of medical malpractice insurance rates. That means we have fewer doctors to take care of the people in need of medical assistance. Last June three doctors left the state because their malpractice insurance premiums went from $360,000 to $560,000. They moved to Kenosha, Wisconsin and now pay $5,000 for insurance."

So why does malpractice insurance cost thousands of dollars more in Illinois in comparison to Wisconsin? Republican state legislators blame the lack of a cap on non-economic damages &ndash what's better known as "pain and suffering".

However, according to Martin Weiss, of Weiss Ratings Inc., whose firm is in the business of rating and analyzing insurance and other financial services companies nationwide, "Nearly every major study on this crisis has been sponsored or financed by one of the interested parties." His firm released a white paper in 2003 on medical malpractice insurance. Weiss found that contrary to claims by proponents of malpractice caps, caps actually failed to slow the rise in median premiums.

Nationwide, proponents of malpractice caps have referred to huge class action lawsuit awards and fleeing doctors as reasons for tort reform.

"Illinois is uniquely disadvantaged because Illinois law is very unfriendly to patients and doctors and very friendly to personal injury lawyers," says Rep. Mark Kirk (R-IL). "We are the number one state in the Union for filing a class-action lawsuit, especially in Madison County, a place that has very few physicians. To insure a neurosurgeon in Wisconsin you have to pay $50,000. To insure a neurosurgeon in Illinois, you have to pay $250,000. The personal injury lawyers will tell you that's because a Wisconsin neurosurgeon is five times better than an Illinois neurosurgeon. But the reality is Wisconsin has passed legislation to protect their physicians, and we haven't."

However, Wisconsin is unique in its nonprofit malpractice system. For malpractice claims of more than $1 million, Wisconsin has a Patients Compensation Fund, which has a huge surplus. It also offers a plan to doctors who are unable to find insurance. In Wisconsin premiums for malpractice have actually fallen while soaring in other states with caps because of their unique universal and nonprofit system.

Madison County, Illinois, is known for its abundance of lawsuits. It's where 953 lawsuits were filed over asbestos alone, making it a poster child for "tort reform", explaining why President Bush recently visited Madison County to highlight his agenda. Asbestos causes lung disease and mesothelioma &ndash a deadly cancer that causes death in less than a year from diagnosis. Class action lawsuits filed on behalf of the hundreds of thousands of victims have been directed at corporations that manufactured or used asbestos, like Hallibuton and Johns Manville, and the tobacco industry &ndash not at doctors. Some proponents for caps claim that Madison County's judges, who are elected rather than appointed, have become too friendly to victims in cases &ndash especially in class action lawsuits.

The Illinois House Republicans' Code Blue Medical Liability Crisis Relief Plan calls for a $500,000 cap on non-economic damages. A similar piece of legislation is being proposed, with a cap of $250,000, at the federal level. Proponents of these bills says they believe that caps will quickly alleviate the pressure some doctors are feeling from rising malpractice insurance rates.

"I think if a bill passes there will be some negotiations on the price, whether it will be $250,000 or $500,000," says Biggert, "but there will be no cap on economic damages. There are legitimate claims out there, and we don't want to hurt those cases. But these awards have gotten to be astronomical."

Personal injury lawyers balk at the notion that non-economic caps are the answer to Illinois' rising malpractice insurance rate crisis.

"Caps are not good for society because they discriminate against those who do not have economic damages," explains Thomas Demetrio of Corboy and Demetrio, a personal injury law firm in Chicago. "You're dealing with children, the elderly and the housewife whose household income comes primarily from her husband's work. What the insurance industry, health care professionals and state legislators don't understand is that our state Supreme Court has, on two occasions, written opinions striking down caps on non-economic damages as being the public policy of this state. Every case is unique and you can't pigeon hole the situation whether it's a quadriplegic, a blindness case or the guy who's had aches and pains for a few weeks. You cannot determine that $250,000 is fair for each case. It's not equitable, and it can't be done."

Illinois had a cap of $500,000 on non-economic damages in the mid-to-late 1970s, but it was overturned by the state Supreme Court a few years later. The Illinois House tried again in the 1990s, but the state's Supreme Court stopped the bill's progress calling it a violation of the state constitution. The idea of economic caps seems to be a lightening rod that sparks partisan politics.

"It used to be inside the Democratic Party that you couldn't talk about malpractice reform at all because trial lawyers represent most of the funding in the Democratic Party," says Kirk. "Now they realize they're going to be thrown out of office if they don't talk about this. And so their new line is to say we have to impose a set of reforms on everything but a cap on non-economic damages, which is to say we're going to fix the car, provided with everything but wheels."

Not so fast says Demetrio.

"We have a governor who doesn't favor caps, and we have an Illinois House and Senate that is Democratic," explains Demetrio. "Yes, we support Democrats, but that's because they fight for the little guy &ndash the consumer. So we have a natural relationship considering what we do is protect the little guy. The Republicans are beholden to insurance companies," he says. "The premiums for health care professionals go up as insurance portfolios go down. This happened in the 1970s, 80, 90s, and it is happening now. The problem is that there's never been a premium rate increase request that has been denied."

Opponents of a cap on non-economic damages believe that insurance reforms are the key to addressing the issue of high malpractice insurance rates.

"In 1975, California put a cap on medical malpractice cases, but premiums still rose 191 percent between 1975 and 1987," says Demetrio. "So they created an insurance reform that calls for a public hearing if the insurance agency requests an increase of over 8 to 10 percent. That is what has kept premiums down. There's a check and balance. We don't have that in Illinois."

Kirk says regulation won't work in a state like Illinois because the circumstances have become so dire that insurers are fleeing the state as well.

"If you put in a cap &ndash any cap &ndash what happens is there starts to be a predictability in the marketplace," he explains. "Right now we only have four insurers left to insure doctors in Illinois. A number of state legislators say we need more regulation of the insurers in Illinois. More regulation? Regulation of the four that are left? How about we drive it down to two? Then maybe when we drive it down to one or zero we can impose more regulations on the insurers that don't even exist anymore. We used to have twenty-five insurers in the state. Now we're down to four. So how many more regulations do you want to impose in order to deal with this problem? For us, the solution is some sort of cap."

However, a 2003 study by The Foundation for Taxpayer and Consumer Rights found that caps alone did not work in California. During the twelve years before Proposition 103 &ndash an insurance reform initiative &ndash California's malpractice insurance rates reached the highest levels in state history even though there was a cap on non-economic damages. In other words, premiums only fell sharply after California passed insurance reform. Then malpractice insurance premiums fell 20.2 percent in California during the first three years of the legislature's passing of Proposition 103. Caps alone failed to reduce premiums.

Because California has the combination of both the non-economic cap and insurance reform, the state is used by both sides of the argument as a perfect example of how their solution is the best for this crisis.

Although the method by which to slow the rise of medical malpractice insurance cannot easily be agreed upon, some sort of reform is inevitable. If nothing changes, Biggert predicts that the state will find itself in even deeper economic trouble than it is already experiencing.

"I think somebody's got to do something about it either on a national or state level," Biggert explains. "If we drive doctors out of the state, people will not want to live here. If we do not have good health care, it will affect property values and the economy. The quality of life in this state is good, and people don't want to leave here to live in Wisconsin or Indiana."

Local hospitals are taking matters into their own hands. Because no neurosurgeons would operate in the town, Joliet hospitals used to transport their emergency patients suffering from head trauma to a neighboring city's hospital. But now those patients will have around-the-clock neurological care thanks to Provena Saint Joseph Medical Center's new partnership with the University of Illinois at Chicago. Four UIC neurosurgeons will be on-call for trauma patients who are rushed to Provena's emergency room.

"This is a perfect example of how to deal with this problem," says Demetrio. "Until real insurance reform is passed &ndash that means something other than caps &ndash this is the best way for hospitals to work together."

Published: February 01, 2005
Issue: Winter 2005