Trial lawyers not giving up on malpractice legislation

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Changing the state’s medical malpractice laws has failed twice in the General Assembly – but the bill might have nine lives.

Supported by the Colorado Trial Lawyers Association, House Bill 1344 was written to raise non-economic caps for medical malpractice lawsuits from $300,000 to $460,000. But the bill didn’t have enough votes and sponsor Christine Scanlon pulled those provisions, leaving only regulations that would require state oversight of malpractice insurance premium increases.

“You’ll see it again. You never know what we’re going to do,” said CTLA executive director John Sadwith. “You might see it next session; you will see it again.”

Sadwith said the association was committed to “protecting patients from negligent doctors,” no matter how hard they had to fight – and highlighted the special place interest groups have in crafting legislation.

“Most legislators could not function very well without special interest groups,” said Dr. Steve Berkshire, professor and director of the doctor of health administration program at Central Michigan University and a former health care lobbyist.

Lobbyists and special interest groups often have the inside view needed to craft good legislation, he said. But, legislators should provide a balance.

“It can be a bad thing,” Berkshire said. “On the one hand, there’s a lot of knowledge, but if the legislator is too sympathetic to a cause, then the bill could be unbalanced – and its chances of passing are slim.”

Fighting among special interest groups can lead to the demise of the bill as well, which is what happened in the case of the medical malpractice bill.

“Most of the arguing abut a bill will take place in committee,” he said. “And if two sides can’t agree, then legislators will drop it.”

Berkshire is not surprised that the trial lawyers are determined to continue the legislation – all it takes, he said, is the right legislator.

“They just have to find someone who is sympathetic to their cause, and who won’t necessarily include the other side,” he said. “And they’ve been able to do that, so far.”

And, even as the current session of the General Assembly draws to a close, the sides in the medical malpractice suit are still at odds.

Sadwith puts the blame for the bill’s failure squarely on the Colorado Medical Society and COPIC, a doctor-owned company that provides malpractice insurance for 51 percent of the state’s physicians.

“It failed because of CMS and their wholly owned insurance company spreading misinformation and exaggerations inside the legislature,” Sadwith said. “And also because of the economy. The economy is in the back of everyone’s mind right now.”

Alfred Gilchrist, executive director of the Colorado Medical Society, said he understood the trial attorneys’ anger, but hopes the two groups can meet to discuss health care reform.

“This gives me a sense of hope that we can move on and start the conversation – how all this fits into the rubric of health care reform,” he said. “We made the decision that we will work with everybody and anybody to have a facilitated, meaningful conversation with the trial lawyers. I’m disappointed to report that we haven’t even been able to agree on a facilitator.”

Gilchrist struck a conciliatory note – saying that overall health care reform was more important than the two sides’ differences.

“We want to look at this from a broader perspective,” he said. “We want the legislation to include ways to prevent negligence and malpractice – not simply ways to increase the damages from it.”

COPIC President and CEO Dr. Ted Clarke said the insurer has been targeted by CTLA for the past three years because it is a “different type of insurance company.”

“We’re not here to merely take premiums and settle cases,” he said. “If a physician has acted within the standards of care, we will defend them.”

COPIC also has a different approach when a patient is harmed or complications occur.

“We call it recognize, respond and resolve,” he said. “It’s a no-fault based program designed to keep patient and physicians working together for the patient’s health – and keep it out of the tort environment.”

Clarke, while also hoping for talks with CTLA, said that the legislation is not merely a “turf battle” between doctors and trial lawyers.

“There are many stakeholders involved,” he said. “And I don’t think this should be debated in the legislature – it would be good to bring consumers, hospitals, dentists and nurses to the table to discuss the issues and create the right type of legislation.”