Malpractice Law
6:00 am
Mon February 4, 2013

Medical Liability Limit Set For Legislative Debate

Originally published on Sun February 3, 2013 7:07 pm

SALEM, Ore. - For decades, Oregon’s trial lawyers and doctors have battled over medical malpractice. Now, the state’s physician governor has brokered a deal aimed at reducing medical malpractice lawsuits. It’s one of the high-profile issues in the legislative session that gets underway Monday. But the state's medical community is deeply divided over the proposal.

Doctor Bud Pierce treats cancer patients in Salem. In more than 30 years in practice, he's never been sued. Still, he says, "Anytime I receive any kind of mailing from a law office or something, I'm always wondering wow, is there a case that's going to come up against me? Every practicing doctor fears that."

Pierce is head of the Oregon Medical Association, or OMA. He helped negotiate the deal sought by Oregon Governor John Kitzhaber. It’s part of the Democrat's efforts to reign in the cost of health care. Here’s the key change: Pierce says the agreement makes it possible for patients to sit down with their doctors for a candid conversation before anyone launches a lawsuit.

"To try to solve it outside of the courtroom and resolve it, and if you need to have payments, make fair payments. And make the courtroom a rare experience for practicing physicians. Solve it other ways."

But some doctors wonder whether the new mediation process will simply make them more vulnerable to higher legal settlements. Pierce says that's not the case, But the vote of the OMA’s board to go along with the agreement was contentious and close.

One of those opposing the plan is a former OMA president. Doctor Monica Wehby is a pediatric neurosurgeon in Portland. Neurosurgeons along with obstetricians have some of the highest rates of malpractice premiums in the medical profession, often topping six-figures a year.

"The problem with this proposal is that it's not tort reform," Wehby says. "It does nothing to change or improve the current liability system that we have right now."

Wehby says the proposal will do nothing to cut down on what’s known as defensive medicine: unneeded medical tests ordered solely to prevent lawsuits. It also doesn't include a cap on liability damages that has long been a goal of some in the medical community.

Oregon voters narrowly defeated a cap like that about ten years ago. And medical malpractice attorneys such as Salem's Jim Vick say it's still not needed.

"I can't remember the last person who came in here who wanted to get rich."

Vick says the people he represents are victims who deserve serious compensation. He remembers a case of a pregnant woman who developed an enlarged heart. Her small-town Oregon doctor had apparently never heard of that condition.

"He didn't diagnose it and she died," Vick says. "And of course that's the kind of case they really can't defend."

The woman’s baby survived and the family won a major settlement. But that’s not typical. Vick says he has to turn down the vast majority of people who call his office wanting to sue a doctor. In some cases, he doesn't even think there was malpractice involved. But for many potential clients, the reality is…they just weren't injured enough.

"We won't even take on a case that doesn't have a $500,000 potential because it just doesn't pencil out," Vick says. "You can't spend those kinds of costs and take those kinds of risks without having a case that's going to produce at least $500,000 worth of revenue."

Vick says he hopes those rejected clients will benefit from the proposed medical liability changes in Oregon.

Along with the governor's blessing, the deal does have bipartisan support. Republican state Senator Jeff Kruse says it will give injured patients the chance to hear directly from doctors without the glare of a pending legal case.

"In a lot of cases I think just knowing what happened and why gives people a lot of comfort. So it isn't always about money. Sometimes it's just about knowing why something happened."

Kruse says he isn't giving up on the idea of imposing a cap on liability claims. He's introduced a separate measure to do just that. But he concedes it probably won't go anywhere.

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