A compelling political stage play that has run in state capitals around the country has made it to the District.
At a press conference last week, Mayor Anthony A. Williams surrounded himself with doctors in white coats and sounded the alarm on rising medical-malpractice-insurance costs.
Williams followed that up with sob stories from doctors who say those costs are driving them out of the city. And the culprit for these out-of-control premiums? Lawsuits: frivolous ones filed by money-grubbers with little cause of action and serious ones in which juries award outrageous sums to injured folks.
So Williams is offering an approach to escalating malpractice-insurance costs that is similar to the one President George W. Bush supports: a bill to protect doctors and hospitals from the courthouse. Williams wants to place a $250,000 cap on awards for pain and suffering in malpractice cases. His bill also would provide immunity for doctors who provide free services and greater scrutiny of insurance-rate increases.
If enacted, the Williams plan would mimic the Missouri plan, the Idaho plan, and the Florida plan. The American Medical Association (AMA) says about 20 states have adopted some kind of pain-and-suffering cap since California kicked things off in 1975. And like the thinking behind those initiatives, the mayor’s case is built on a few sketchy claims that get heavy rotation in legislatures across the country.
Dubious claim No. 1: Lawsuits inflate insurance rates.
“Making people millionaires because of pain and suffering will bankrupt us,” Medical Society of the District of Columbia (MSDC) President Victor Freeman said at the press conference. But in a 2003 report, Weiss Ratings Inc. indicated that insurers continue to boost premiums for doctors at a rapid pace even in states that have caps. In fact, the independent rating firm found that states with caps saw larger rate increases than those without caps.
Dubious claim No. 2: The crisis is forcing doctors to flee D.C.
Dr. John Niles stepped to the podium to substantiate this claim. “It is too late for me,” said Niles, “but we have think of our younger doctors, our children and our grandchildren.” Niles says he worked in the District for 32 years as an OB/GYN but left for Maryland because insurance premiums got too high. But according to a 2003 report from the AMA, the number of doctors in the District has actually gone up, while the city’s population has decreased. Some doctors can save insurance costs by operating outside of the city, but a mass exodus doesn’t seem to be upon us.
Dubious claim No. 3: “We have the highest malpractice rates in the nation and the highest jury awards in the nation,” Williams said.
Compared to states, that is.
Saying the District is the worst in any category is always an attention-grabber. But it’s an odd stance for Williams. He’s among the first to squawk when the District is listed as dead last in state rankings. For example, anyone claiming that the District has one of the highest infant-mortality rates among the states will draw a scowl from the mayor. He rightly points out that an urban jurisdiction like the District shouldn’t be compared with states.
Until he needs some explosive political rhetoric, that is.
Opponents of caps on pain-and-suffering awards say it makes more sense to compare the District against cities like Baltimore when looking at malpractice-insurance rates and jury awards. A 2003 report by the Maryland Health Claims Arbitration Office shows that more malpractice claims were filed in Baltimore than in D.C., even though Maryland has a $650,000 pain-and-suffering cap. The report also reveals that total pain-and-suffering jury awards were lower in the District than in Baltimore on average.
Doctor-heavy press conferences have become the scourge of trial lawyers across the land. And the Trial Lawyers Association of Metropolitan Washington, D.C. (TLA-DC), is preparing for a counterprogramming phase. “Our goal is to first is to educate the public about the truth beyond the mayor’s myth,” says Wayne Cohen, president of TLA-DC.
The trial-lawyer lobbyists know how to get to the John A. Wilson Building. Damage-cap proposals cropped up on the D.C. Council agenda every so often in the late ’80s and early ’90s, usually courtesy of pro– Chamber of Commerce pols such as former Ward 4 Councilmember Charlene Drew Jarvis. She conducted a three-day hearing on the matter in 1992, and the final session ran on until midnight. The financial control board also held similar hearings at the request of Congress.
But Jack Olender, TLA-DC’s legislative chair, says this battle for jury latitude is different. “The medical and insurance and hospital industry has been able to get the mayor invested in this,” he says. “This is peculiar because this is a big Republican agenda.”
Williams is the first chief executive of D.C. to champion such high-profile Republican initiatives as school vouchers and now damage caps. And in this case, he’s going against a group—the trial lawyers—that has had a hand in the campaign of virtually every elected official in the city.
That was only his first political miscalculation.
Another: At the press conference, the mayor announced that At-Large Councilmember David Catania, chair of the Committee on Health, had promised to hold a hearing on his bill this year. Williams called that “significant progress” in moving a reform bill.
Caps aren’t part of Catania’s plan.
He’s convened a task force on medical malpractice. According to Catania’s April 12 invitation to one task-force participant, the group will “research and examine solutions to the challenges surrounding medical malpractice” in D.C.
Oh, and by the way, the invite makes it quite clear that “the concept of award caps for malpractice injuries will not be on the table for discussion.”
“The more I look at the issue, I’m not convinced caps are the way to go,” Catania says. He’s freeing his task force from the charade of trying to find middle ground on the issue.
Catania says he wants to focus on creating a better system for doctors to police their own colleagues and finding a way to weed out the nuisance malpractice claims. “When I have a hearing in the fall, I’ll be looking for noncap options,” he says.
Chalk one up for the trial lawyers.
Committee on the Judiciary Chair Phil Mendelson says he’ll hold a hearing on the mayor’s bill. But caps are a nonstarter for him, too. “I tend to be skeptical that is the solution,” Mendelson says. He’s apparently already seen the TLA-DC education brochure.
“The evidence suggests that in the District, payments may be less than Maryland,” he says. “The [jury] judgments were less than in some other cities. I’m not sure what we are getting with caps.”
Several city-hall sources call the mayor’s cap conversion another example of his bungling of a major legislative initiative. Independent Catania is the only councilmember whom the mayor had a commitment from to examine the issue before he unveiled his bill.
The mayor’s former spokesperson, Tony Bullock, challenges the idea that the mayor has committed a sin against his party. He argues that it used to be “an act of Democratic political heresy to move on the other side of the issue. In this case, though, you are seeing it more and more across the country, that this issue has transcended party loyalties. It’s an economic issue rather than an political issue,” says Bullock, who is working as a consultant for the MSDC.
TLA-DC President Cohen hasn’t quite lost his partisan take on caps. “Why is a Democratic mayor introducing a Republican bill?” he asks. He also says the District is one of the most pro-consumer jurisdictions in the country. He points out that patients were noticeably absent when the mayor rolled out his bill: “Why was there not a single patient? In a city like D.C. I don’t get it.”
Cohen need not worry too much. Ward 2 Councilmember Jack Evans says that in a city run by Democrats and their powerful friends, old ways die hard. “I don’t believe the mayor’s bill as currently configured has a chance to get through this body,” he says.
•The long wait for a new D.C. inspector general may soon be coming to an end. Williams has floated a possible nominee to Ward 5 Councilmember Vincent Orange, who chairs the council’s Committee on Government Operations. Orange says he is reviewing the credentials of Charles J. Willoughby, assistant inspector general at the Federal Communications Commission. “He has the kind of stature and investigative record to do well,” Orange says.
Interim Inspector General Austin A. Anderson has been on the job for 15 months now. The last person permanently at the post—Charles Maddox—was essentially tossed out by the council. He resigned Sept. 12, 2003, after the council passed new qualifications for the position that Maddox could not meet. Anderson says he is not a candidate for the job because he has no plans to leave Virginia, where he’s lived for 20 years.
But mayoral spokesperson Vincent Morris says Orange is jumping the gun. According to Morris, the mayor is still considering several finalists to recommend to the council.
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