Costly mistakes

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Legislation introduced this month at the General Assembly is about to re-ignite an old battle.

A bill that would increase the cap on non-economic damages in medical malpractice suits is being considered for the second year in a row, recreating last year’s showdown between doctors and lawyers.

Called the “son of SB 164,” House Bill 1344 proposes much the same thing as the bill that failed: increasing non-economic damages from $300,000 to $460,000 – a move that attorneys say is necessary to ensure patients get their day in court.

“From a lawyer’s perspective, you would have more cases that you simply wouldn’t look at now, said David Woodruff, an attorney at Hillyard, Wahlberg, Kudla & Sloane. “Medical malpractice lawyers – and there aren’t many in the state – won’t take all the cases because of the expense involved. It’s very expensive. You have to hire three or four doctors to review the case, and they all charge between $500 and $1,000 an hour. So you can only bring the cases where the economic damages are going to be high enough to justify taking them to court.”

Current law in Colorado sets an overall soft cap of $1 million, but compensation can be raised above that if a judge deems it necessary.

Doctors at the Colorado Medical Society say they aren’t opposed to reasonable caps – and they claim they have tried repeatedly to work with the Colorado Trial Lawyers Association, who helped draft the bill, to address shortcomings within the medical malpractice system.

“We have tried to talk to them about the problems with what the system intends to accomplish,” said Dr. Dave Downs, an internist and immediate past president of the Colorado Medical Society. “The fundamental concern with the system now – it’s expensive, slow, difficult to access.”

The physicians’ group wants to create a system that provides appropriate compensation to patients, holds physicians accountable who violate the rules of the road and examines systems of care for ongoing problems.

The current system doesn’t do the job, said Lynn Parry, a past president of CMS and co-chairwoman and of the physicians Congress for Health Care Reform.

And doctors are concerned about one provision of the bill that requires COPIC, Colorado’s largest medical malpractice insurer, to get permission from the state’s insurance commissioner before it can increase rates.

“I’m not COPIC insured, but it makes me nervous,” Parry said. “They want to increase the caps, but not allow COPIC to increase premiums. That’s going to make it difficult for COPIC to remain solvent.”

The insurance company has gained national attention for bringing patients and doctors together to resolve medical malpractice claims outside the courts. That program could be at risk, Downs said.

“COPIC’s main issue is risk management and education,” he said. “They work to improve systems; they’ve done some of the most innovative programs in the country.”

A similar bill failed last year in the Senate, and CMS attempted to mediate its differences with CTLA, but the lawyer’s group pulled out of negotiations.

One of the issues that CMS would like to see addressed: double-dipping.

“There are attorneys in medical malpractice cases that take the money meant for future medical care and protect it in a trust,” said Kari Hershey, CMS legal counsel. “And then they get their client approved for Medicaid – so we’re all paying for the problem. We have issues about the cost and efficiency of raising caps, and then other people ending up paying as well.”