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Plan aims at malpractice relief

July 1, 1993

Sen. Dick Durbin, (D-Ill.) and Sen. Lindsey Graham (R-S.C.) have offered a bipartisan plan for immediate relief to doctors and hospitals hard hit by soaring insurance premiums as the Senate begins debate on medical malpractice reform.

The two legislators claim their plan would address the causes of the malpractice crisis without undermining the legal rights of the most severely injured patients.

Rather than focusing on strict tort reform steps, including caps on non-economic damages, the Durbin-Graham plan takes a more comprehensive approach. It includes focused tort reform; steps to deal with anti-competitive practices by insurance companies; medical error prevention; financial aid to medical communities struggling with high malpractice premium hikes; immediate financial aid to professionals, especially in high-risk specialties such as obstetrics, neurosurgery and trauma care, and creation of an independent commission to review the issues causing the malpractice crisis.

“We all agree that there is a crisis in America with doctors being severely squeezed financially-or even driven out of practice altogether—when their medical malpractice becomes unaffordable,” Durbin said.

“This is a complex problem that can’t be solved by tort reforms and imposing arbitrary caps on jury verdicts,” Durbin said. “When the medical society came to talk to me about this issue, they conceded that even if all the proposed tort reforms were to pass this year, doctors would not see a decrease in their premiums for three to four years. Doctors deserve better. Patients deserve better. Americans deserve a plan that improves health care accountability and prevents gouging of doctors through excessive malpractice premiums.”

Sen. Graham added: “The rising cost of medical malpractice insurance is real. Unfortunately, the primary purpose of the bill pending in the Senate is to unfairly restrict victims who have suffered from malpractice. I object to the further federalization of our health care system. Restricting non-economic damages to a total of $250,000 is unfair to minors and at-home spouses who have a hard time documenting economic loss.”

To try to prevent or at least sharply reduce medical error, the Durbin-Graham plan would create a voluntary database system to share information on medical mistakes among health professionals.

The National Patient Safety Database would be immune from legal discovery and would permit physicians to exchange such information without fear of legal action. The idea is to allow physicians to learn from others’ mistakes and to develop better medical practices. The bill also would create a Center for Quality Improvement and Patient Safety within the Agency for Healthcare Research and Quality.

Health professionals experiencing higher than average premium increases would get tax credits; up to 20 percent of the premium for those in high-risk specialties and up to 10 percent for those in general medicine, dermatology and pathology. For-profit hospitals could get tax credits of 15 percent of total malpractice premiums under this plan, and non-profit hospitals would be covered by a grant program to be created within the U.S. Department of Health and Human Services.

Doctors whose caseloads are comprised of 25 percent of Medicare, Medicaid and children’s health care enrollees, would get protection from punitive damage awards. The only exemptions would be proof of an intentional act by the doctor, such as voluntary intoxication, sexual abuse, misconduct, assault and battery and falsifying records.

The Durbin-Graham bill also would reduce the prospect of frivolous lawsuits by requiring all attorneys filing medical malpractice actions to include an affidavit by a qualified health care professional that real malpractice has occurred. The attorney also must certify that the case is meritorious. Violations would be subject to strict civil penalties.

The plan would create a 15-member commission to evaluate the causes and scope of recent dramatic increases in malpractice premiums and formulate proposals to reduce those premiums.

At the same time, the plan would repeal the anti-trust exemption granted insurance companies under the McCarran-Ferguson Act, which the two lawmakers say is essential to lowering malpractice premiums.

“At a time when comprehensive patient care is hanging by a thread, we must put the needs of our nation’s health providers and their patients first,” Durbin said.

“Our bipartisan bill will have its fair share of critics from the legal and medical professions,” said Sen. Graham. “That leads me to believe it strikes the right balance for all parties with a dog in this fight.”

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