Malpractice cap may keep docs in Illinois

But will children suffer?


Liz DeCarlo


Andrew Roth always wanted to deliver babies when he grew up—like his dad. When he became an obstetrician, he joined the practice with his father. But last year, with medical malpractice insurance premiums running more than $200,000 a year and jury awards targeting doctors’ personal assets, Roth’s father retired.

Though Roth’s own insurance premiums were rising, he didn’t want to stop delivering babies. Instead, he closed his Cook County office, where premiums were higher, and now practices in DuPage County. His patients either have to travel farther to see him or find a new obstetrician. Meanwhile, Roth sees more patients in less time and orders more tests to cover himself in a lawsuit if something goes wrong.

“The average Illinois OB gets sued once every 18 months, and these are good doctors,” Roth says. “Now we’re running so scared that we’re over-testing everything, even if it’s not warranted. I’m more interested in covering my butt than in the expenses I’ll incur.”

But now Roth and other Illinois doctors think relief from high insurance premiums may be in sight. In May, Illinois legislators passed a bill that puts a cap on malpractice awards for noneconomic (pain and suffering) damages. That should rein in insurance rates and encourage obstetricians to stay in Illinois—good news for both doctors and patients—says Dr. Denise Elser, chair of the Illinois chapter of American College of Obstetrics and Gynecology. Critics of the bill disagree, saying it will hurt families with a child who died or became disabled because of a doctor’s mistake.

Despite the expected opposition over the next several months, Gov. Blagojevich plans to sign the bill once he receives it from the General Assembly, and has 60 days to do so, says Rebecca Rausch, Gov. Blagojevich’s press secretary.

“The bill the General Assembly signed was a compromise. This is a very divisive issue and there has been opposition to it, which is why we compromised,” says Rausch.

Elser says the caps were a necessity. “States that have implemented these caps have [insurance] rates under control,” Elser says. “With this legislation, hopefully our doctors will hang in there until things get better.”

That’s a good thing, Elser says, because obstetricians across Illinois have felt the effects of increasing insurance rates, which they believe result from out-of-control jury awards in medical malpractice cases.

In 2004, obstetricians in Illinois paid the second highest liability premiums in the nation, upward of $230,428 annually, according to the Medical Liability Monitor, an increase of 66 percent from 2003. By moving to Wisconsin, Indiana, Iowa or Missouri, an obstetrician can save $75,000 to $100,000 annually.

With insurance so high, 22 percent of Illinois obstetricians left the state or stopped delivering babies in 2004, on top of the 12 percent who stopped delivering in 2003 and the 10 percent who have announced they will quit by the end of 2005, according to a survey by the Illinois Section of the American College of Obstetricians and Gynecologists. Even worse, few medical students want to practice obstetrics here because of insurance costs.

For Illinois women, those numbers mean longer waits to see doctors, shorter visits and more tests as doctors try to head off malpractice claims. Women with high-risk pregnancies may find few doctors willing to deliver their babies. Women in southern Illinois have had more “highway births” as they drive farther to deliver their babies.

River Forest mom Liz Jaros, whose obstetrics group disbanded after she had her second child at MacNeal Hospital three years ago, has been looking for a new obstetrician. Her primary physician had a tough time coming up with an experienced doctor who was still delivering babies at MacNeal and would accept Jaros’ insurance.

“I didn’t get the feeling there were a whole lot of seasoned OBs waiting for me,” Jaros says.

Jaros still hasn’t found another obstetrician and doesn’t know what she will do if she has another baby.

“Starting over is scary, because you don’t know anything about these people and you’re putting a lot in their hands,” Jaros says.

Illinois legislators hope the new caps on malpractice awards will slow the departure of Illinois doctors so other women don’t have to start over as Jaros did. They also believe the new law protects patients because it doesn’t affect jury awards for the economic aspects of medical malpractice.                 

Previously, juries could award families millions for pain and suffering. Now that amount will be capped at $500,000 from the individual doctor and $1 million from the hospital.

“We didn’t take away economic damages. You can settle for millions on medical costs and lost wages,” says Rep. Thomas Holbrook (D-Belleville), one of the bill’s sponsors. “The cap only covers pain and suffering.”

The caps are expected to reduce insurance premiums by encouraging insurance companies to come to Illinois and compete for business because the risks of huge payouts are lower.

“You develop an environment friendly to insurers and with more certainty and it will drive the [insurance] rates down,” says Rep. Ruth Munson (R-Elgin), who sponsored unsuccessful legislation last year to put caps on malpractice awards. “It’s happened in other states that have imposed caps.”

But others think the caps won’t reduce insurance rates and families whose children die or become disabled because of medical negligence will pay dearly.

“When you limit noneconomic damages, this can have a chilling effect regarding the negligent death of children because they have no economic worth as children,” says Lynda DeLaforgue, co-director of the advocacy group Citizen Action/Illinois. “And it’s the noneconomic damages that compensate for loss of life, companionship, the laughter and the love.”

And economic awards—the ones not affected by the caps—don’t cover all costs, DeLaforgue adds: “Insurance pays for diapers, but not diaper wipes. Noneconomic awards pay for the specially ordered clothing with holes for feeding tubes, or the lost wages of a parent who may not be able to continue working because they’re caring for a child. These are the kinds of things that impact the health and welfare of the entire family.”

DeLaforgue also notes that insurance premiums didn’t necessarily drop in other states with malpractice caps. Illinois has one of the most unregulated insurance industries in the country, DeLaforgue says, and even ISMIE Mutual Insurance Company, the state’s largest medical malpractice insurer, has not said caps will reduce its premiums.

“I believe a lot of things with the medical malpractice issue are politically based. The Illinois Chamber [of Commerce] joined forces with insurance companies and the Illinois State Medical Association and really ran an effective campaign,” DeLaforgue says. “Putting out the scare that we’re going to lose our OB/gyns is part of their concerted effort.”

Illinois State Bar Association officials also think caps aren’t the answer to high insurance costs and have fought the new legislation, which they think is based on anecdotal information rather than facts. The association commissioned Dr. Neil Vidmar, a researcher and author on medical malpractice at Duke University’s law school, to conduct a study in Illinois on medical malpractice and tort reform.

Vidmar’s 2004 study maintains there was no increase in malpractice lawsuits between 1994 and 2004. The study also says that between 1993 and 2003, the number of obstetricians in Illinois actually increased from 1,596 to 1,814.

But try telling that to Dr. Chris Barbour, a Downers Grove obstetrician who spent the past year lobbying for reform on medical malpractice costs after losing two of his partners because of high premiums. He thinks caps are the best answer.

“Many times jurors feel someone has to pay because this person will need help the rest of their life, but often health insurance and disability covers this,” Barbour says.

He thinks the caps are necessary to keep doctors in Illinois, but doesn’t believe they will help him replace his partners.

The legislation probably does come too late for doctors who have left the state or already plan to do so, says Dr. Craig A. Backs, president of the Illinois State Medical Society.

“Where this will help is for students in medical school with two or three years to go,” Backs says. “We hope this will have an impact on students deciding where to practice and that they’ll see this in a positive way.”

Additionally, doctors may not see immediate changes in insurance premiums because the caps are expected to be challenged in courts by lawyers who feel limiting awards is not fair to patients who suffer from medical negligence. Any reductions in malpractice insurance costs may not occur until the challenges reach the Illinois Supreme Court and are decided on, Elser says. 

Liz DeCarlo is a freelance writer who lives in Darien with her husband and three children.

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