By Jay Conway

Determined to achieve reform of Massachusetts' professional liability system, a delegation of MMS leaders strongly urged the Joint Committee on the Judiciary to approve their legislative proposal and send it to the House and Senate for floor action.

"Massachusetts has long been one of the finest places in the world to train and seek medical care," said MMS President-Elect Alan C. Woodward, M.D., FACEP, testifying before the judiciary panel at a State House hearing on October 9 in Boston. "Unfortunately, our ability to continue that claim is in jeopardy."

Dr. Woodward was part of a panel that included Mario Motta, M.D., chair of the MMS Committee on Legislation, and Barbara Rockett, M.D., chair of the Committee on Professional Liability and past MMS president. With unseasonably warm temperatures outside on the Boston Common, the crowded, hot hearing room A-1 was filled with more than two and a half hours of testimony, primarily from physicians, legislators and patients showing support for House Bill 2842.

Dr. Motta explained that similar legislation has helped other states control liability premium increases.

"[These provisions] reflect legislation that was signed into law in California and has been generally credited with holding down the overall increase in professional liability premiums in California," Dr. Motta told legislators. "From 1976 to 2001, premiums rose 167 percent in California compared to 505 percent in the rest of the country and over 2200 percent in Massachusetts."

Dr. Motta related that underscoring the potential effectiveness of the Massachusetts proposal is the recently released Milliman USA actuarial analysis that shows a cost savings ranging from 25 to 30 percent if five of the six reforms (see "Strong Public Support for Liability Reform") are enacted.

Access to Care
Skyrocketing liability insurance premiums have forced physicians in high-risk specialties, such as obstetrics and neurosurgery, to leave or curtail their practices.

"Massachusetts is on the verge of having fewer physicians than the national average," testified Dr. Rockett, who provided the following examples:

• Dr. Robert Leaver of Cape Cod is retiring because his annual liability insurance is increasing 20 percent, from $96,000 to $115,000.
• Even though Dr. Richard Warburton of New Bedford stopped delivering babies, his liability insurance still went up 20 percent, from $45,000 to $54,000.
• Eleven ob/gyns in Western Massachusetts and four Milford ob/gyns have stopped providing obstetric services.

And the malpractice insurance problem is not just affecting specialty practices. Sitting before the members of the Judiciary Committee, Dr. Laura Knobel, a family physician practicing in Foxboro who is also president of the Massachusetts Academy of Family Physicians, said that rising insurance costs have forced her to stop providing colposcopy and endometrial biopsy services to her patients.

"I have always said that when I am no longer allowed to practice medicine in the way I was trained...that I would leave medicine," Dr. Knobel told the legislative panel. "I can tell you that I am very close to that point."

Opposition to the Bill
Also testifying at the hearing were representatives of the legal community, including the Massachusetts Bar Association and the Massachusetts Academy of Trial Attorneys (MATA).

MATA took exception to virtually every aspect of the MMS professional liability reform bill, saying that there would be no direct effect on insurance premiums. For instance, concerning imposition of a $500,000 cap on all noneconomic damages without exception, MATA states that there is a lack of "empirical data" linking jury verdicts in this area to higher insurance costs. Moreover, such unrestricted caps are "bad public policy."

"The effects of such caps would be to deprive the most severely injured individuals, often women, children, minorities and low-income workers…of fair compensation for their injuries…such as loss of mobility, paralysis, loss of bodily functions, blindness, disfigurement, severe and chronic pain, loss of consortium, or loss of reproductive capacity," said MATA member Patrick Jones.

One such person who realized a catastrophic loss was John J. McCormack of Pembroke. He testified against the bill. He told the Committee that his 13-month-old daughter "got bumped from surgery" for treatment of hydrocephalus. When she developed complications in the hospital, her doctor could not be reached because he had turned off his pager while going into a grocery store. McCormack said that his daughter suffered 98 percent brain damage and ultimately was taken off life support and died.

What's Next
This hearing was the latest action in the long-running effort to win legislative enactment of a professional liability reform measure. The measure was submitted to the Legislature on behalf of the MMS last December. This was the bill's first formal hearing, but it will not be the last. The Joint Committee on Insurance is also expected to hear testimony on the measure.