Medical Liability Reform Bill Passes – Now What?

by Peter E. Lavine, MD, MSDC Board Chair

For the past three years, the City Council has been considering legislation that will lower the medical liability insurance premiums physicians are forced to pay to practice in the District of Columbia. These premiums, some of the highest in the country, have caused the exodus of physicians from the District of Columbia, decreased access of DC residents to health care services, and caused financial losses for the City as the health care infrastructure moves to the suburbs. The formula that has been successful in jurisdictions across the country is a combination of patient safety measures – as passed by Congress in the federal Patient Safety and Quality Improvement Act of 2005, meaningful insurance regulatory reform, and civil justice reforms – both in terms of limits on non-economic damage awards and non-cap tort reforms. Mayor Williams proposed the Health Care Act of 2005 (B16-283), which was a comprehensive bill that included all of these elements.

While this bill was rejected by the Council, there was a paradigm shift in the debate. For the past 30 years, the battle between doctors and malpractice trial attorneys was fought in the arena of hearsay and anecdotal stories. The trial bar came armed with money, power, influence and the same old anecdotal stories as in the past. What was new this time around is MSDC and its allies came armed with national and local published studies, facts, and concrete solutions that have worked in places like California and Texas. The denial game by the trial bar was over and the City Council, for the first time, seriously admitted there was a crisis and set out to come up with solutions. It was no longer acceptable that there are no OBGYNs delivering babies in Ward 7 and 8 where infant mortality rates are among the highest in the country; that there was an unprecedented number of hospital closures in DC; and that specialists will no longer take emergency room calls. As physicians, we are the guardians of patient health and safety on a daily basis.

As the debate shifted, so did the attention of the Council. There was the Medical Liability Reform Task Force, there were two new bills introduced –Medical Malpractice Insurance Reform Amendment Act of 2005 (B16-334) and Medical Malpractice Reform Act of 2005 (B16-418), and there were three hearings before the City Council. MSDC conducted high-profile press conferences, pounded the airwaves with TV and radio spots, and worked proactively with the print media.

Despite all of these efforts, money and campaign donations buy access and influence in this town. There are 75,000 attorneys in DC while there are less than 4,000 practicing physicians. It is a David and Goliath story any way you slice it. We not only fight local opposition, but given our location in the Nation’s capital, we attract opposition from well-funded national trial bar advocates, such as Public Citizen. The goal of the trial bar has been to keep any bill from passing. When the denial game began to fail, it switched to the national tactic of trying to blame the insurance industry. Heavily outgunned -- MSDC has volunteer physicians and a small, but dedicated staff -- our goal was real, meaningful reform for physicians and the thousands of DC patients we treat every day.

On December 19, 2006, the Medical Malpractice Amendment Act of 2006 (Bill 16-344) was passed by the City Council. This was the original B16-334 with a sprinkling of B16-418 added to it. Unfortunately, most members of the Council did not stand up to the trial bar pressure and allowed this bill to be eviscerated of several of its most meaningful elements. We opposed the addition of vague, over-reaching, physician-reporting language that goes beyond the federal patient safety bill. The devil will be in the details. B16-334 contains sweeping insurance regulatory reforms, most of which were promoted by the trial bar.

The final bill falls short of the meaningful, comprehensive reform that we had fought for. But it is meaningful! This bill is an acknowledgement that there is a problem and is a dramatic first step toward meaningful reform. It sets a precedent and confirms that there is a crisis that must be addressed for the health care of all DC residents. The success of this bill will be measured in how far rates drop in 2-3 years. The hubris of the trial bar has taken away the future argument that the problem is insurance-related and not a civil justice reform crisis. In Texas, the reforms resulted in a dramatic drop in medical liability premium rates within 2-3 years. If this does not happen in DC, it will be time for civil justice reform, and the arguments against it will no longer be possible. If rates do drop in DC, as the Council has promised by passing this bill, we will all be thrilled. If not, we will be back in two years to promote passage of the final piece of the puzzle, civil justice reform. Either way, this was a bittersweet, but important victory for physicians and our patients.