Roundtable: The ob/gyn and legal liability: condition critical, Part 2

January 1, 2005

As described in the first half of this roundtable (see Contemporary OB/GYN, November 2004), the professional liability insurance crisis has had a broad and pernicious impact on the country's obstetrician/ gynecologists. As they conclude the discussion, the panelists move from reflecting on how the crisis came about to speculating about the prospects for reforming--or even completely replacing--the current tort system.

As described in the first half of this roundtable (see Contemporary OB/GYN, November 2004), the professional liability insurance crisis has had a broad and pernicious impact on the country's obstetrician/ gynecologists. As they conclude the discussion, the panelists move from reflecting on how the crisis came about to speculating about the prospects for reforming-or even completely replacing-the current tort system.

Charles J. Lockwood, MD

Moderator

I think some of the Senate proposals are very reasonable, but I'd like to get your perspectives. Speaking for the group, I think the one that we all view as the most important is caps on noneconomic damages (see definitions box ). But let me be a little bit provocative and take the trial lawyers' perspective that caps are unjust because they would only apply to cases of medical malpractice, and not other situations, such as product liability. Dr. Strunk, do caps work and are they just?

Dr. Strunk: California's experience with caps suggests that they do work. In the 25 years that California has had caps in place, the premium increases there have been less than one third of those in states without caps.1 Caps are not a perfect solution but they are reasonable, rational, and appropriate. Unlike compensatory damages, where reasonable yardsticks and guidelines can be given by the judge in his or her instructions to the jury, there are really no guidelines to assist a jury of laypersons in determining what value to attach to intangibles such as pain and suffering. For the common good, if you will, it seems appropriate to place some limit on those otherwise indefinable and unquantifiable elements of alleged damage.

Dr. Lockwood: Dr. Auerbach, from insurers' perspective, do caps work?

Kessler looked at several medical conditions, such as heart attacks and ischemic heart disease, to see whether tort reform actually changed mortality or readmission rates. What he showed is that, over time, in states without caps versus with caps, costs went way up, while mortality and readmission rates were exactly the same.