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Jan. 21, 2004

Doctor March in Annapolis Misguided; "Repeat Offender" Doctors Are the Problem, not Medical Malpractice Lawsuits

Statement of Joan Claybrook, President, Public Citizen

Today’s doctor walkout may prove to be a good publicity stunt, but it will do nothing to lower medical malpractice insurance rates. Instead of marching in front of the statehouse, doctors should consider how best to shield patients from those physicians who are responsible for the majority of the state’s medical malpractice claims.

It wouldn’t be hard to identify them – the medical society and the National Practitioner Data Bank keep such information. Unfortunately, neither entity shares this information with the public.

Last year, the Maryland legislature passed a law requiring that the public be provided information about doctors who have settled three or more malpractice cases. But the law fell short. The disclosure of these doctors’ names is required only if all three incidents occurred during the past five years and only if each settlement exceeded $150,000. According to Public Citizen’s Jan. 14 analysis of National Practitioner Data Bank records, only five Maryland doctors are covered by the law. Worse yet, none of the five’s records has yet been posted on the Board of Physicians’ Web site. So much for disclosure.

This information is key because just 3 percent of Maryland’s doctors have been responsible for 50.8 percent of malpractice payouts to patients since 1990. If we can stop these doctors from injuring patients, we can dramatically cut the amount of malpractice that occurs and curb the associated costs.

Most doctors who injure and kill patients are given a slap on the wrist. Only 20.6 percent of Maryland doctors who made three or more malpractice payouts since 1990 were disciplined by the Maryland authorities. Moreover, Maryland in 2002 ranked 46th among all states and the District of Columbia for the frequency with which it takes serious disciplinary actions against doctors for incompetence, misprescribing drugs, sexual misconduct, criminal convictions, or other offenses.

So we have a situation in which doctors who cause most of the malpractice are allowed by the state to continue harming patients while state lawmakers now consider punishing their innocent victims.

The medical and insurance lobbies are wrong to push for damage caps. Caps not only fail to reduce rates, they are immoral. For a 20-year-old survivor of malpractice who is permanently disfigured or wheelchair-bound for life, the proposed cap equates to about $17 a day, before attorneys’ fees. Caps also discriminate against injured seniors, children and homemakers. A highly paid CEO, for example, could be compensated with millions of dollars in lost wages for the exact same injury suffered by a retiree, who might get nothing in such economic damages. That’s not justice.

Caps address a problem that doesn’t exist. The recent spike in malpractice rates was caused by insurance industry economics and the economic downturn – not the legal system.

The Maryland legislature should improve the disclosure of information about repeat malpractice offenders and boost enforcement against them. Meanwhile, Marylanders need to look beyond the scare tactics of the Medical Society and demand not only information about bad doctors in their midst but also that Maryland authorities hold doctors, hospitals and insurance companies fully accountable for deaths and serious injuries.

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Read more on Public Citizen's medical malpractice home page.

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