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June 21, 2004, 12:00 P.M.

[Ed. note: This piece was written on June 21, and was published in the Laconia Daily Sun on June 22, 2004, but not posted until July 6, 2004.]

President Bush appeared in Youngstown, Ohio a few weeks ago to talk about healthcare and easily lapsed into one his speeches about "junk and frivolous" malpractice suits, which he claims are discouraging doctors from practicing certain specialties. Bob Herbert’s column in the June 18, 2004 New York Times entitled "Not So Frivolous" highlights some of the propaganda surrounding this issue.

A local doctor, Compton Girdharry, appeared with the President at Youngstown State University and was touted as one such doctor "driven from practice" by the cost of malpractice insurance. What the Bush advance team failed to discover was that since the early 1990's, Girdharry has settled lawsuits in a number of malpractice cases in which his patients suffered severe injuries or death. Talk about your intelligence failures.

Herbert reports that among Girdharry’s victims is a woman named Lisa Vitale who saw Girdharry at Alliance Hospital in Alliance Ohio for the delivery of her second child. Despite a previous delivery by caesarean section, Ms Vitale was assured that a vaginal delivery in this case would be no problem. Dr. Girdharry stopped in to check on Ms. Vitale, failed to notice that the baby was in serious distress, and went to dinner.

Lisa’s baby did not die, but by the time the doctor was called back from dinner, he pronounced that it was too late to take steps, including a caesarean section, that might have prevented serious and permanent injury. Not that it could not have been prevented, mind you, but that it was "too late." Lisa’s son lived for a little more than six years.

Herbert spoke with another Girdharry patient, Judy Mays, who had a sponge left in her that had a cord and a ring attached. Girdharry failed to follow up on her complaints of excruciating pain the first time she came to him. But after four and a half months, when she noticed a large growth beneath her skin, she complained again and this time a CT scan revealed the sponge, which was now so ingrown among her internal organs that the surgery to remove it cost her part of her large and small intestines.

Herbert has finally gotten to the real issue. The connection between malpractice premiums and jury verdicts or settlements is a myth. The details of settlement in cases like those involving Dr.Girdharry are usually confidential (at the insistence of malpractice insurers and their lawyers) and thus they are not reported. It is the verdicts, in often equally egregious cases, that are public and distorted and manipulated to create the myth of a connection between compensation for real, serious injury or death and the cost of malpractice insurance to the rest of the medical profession.

Herbert’s subsequent column, "Malpractice Myths", cites some additional examples of malpractice that weigh against the reforms advocated by the Bush administration. Someone in the popular press has now finally recognized that what is truly needed in this country is "crackdown on malpractice, not a campaign to roll back the rights of patients who are injured."

As I have frequently pointed out, there is absolutely no connection between soaring malpractice premiums and the payment of malpractice claims. Industry executives are careful not to say that the Bush administration’s so-called "reforms" will result in lower premiums. What will result is larger bonuses for industry executives and higher profits for the industry. There is no regard in this profit scheme for those who are harmed by doctors like Girdharry.

Unfortunately, and despite overwhelming evidence to the contrary, doctors across the country have become the insurance industry’s handmaidens. Despite the fact that insurance industry profits are skyrocketing (evidenced by the absurd bonus and compensation packages paid to industry CEOs), tort filings are down nationwide and only about 2% of people who are hurt by malpractice actually sue. Doctors fail or refuse to see that the insurance industry is more to blame for their exorbitant insurance costs than are the awards given to the victims of their less-than-competent colleagues. The facts are there for all to see, yet doctors are now threatening to refuse treatment to lawyers because they are lawyers.

Chris Hawk, a surgeon in Charleston, SC, says that refusing treatment to malpractice lawyers and their families is necessary in this "fight." What about insurance executives? Is anyone refusing them treatment?

This has also happened right here in New Hampshire where there is no factual argument to be made for runaway juries. A seacoast doctor, Rick Miller, told New Hampshire Trial Lawyers President, Tim Coughlin (who does not do malpractice litigation), that because he lobbied against limits on malpractice suits, Miller would refuse him treatment. And this is based on the misinformed notion that there is some relationship between premiums and jury awards or settlements. Once again, what drives insurance company profits is not premiums, but investment income and profits today are running high. With a "tort reform" poster child like Compton Girdharry, the Bush administration may have just turned the tide in this debate. One can only hope.


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