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The Honolulu Advertiser
Posted on: Thursday, March 5, 2009

Task force could shine light on tort reform issue

Don't bet any serious money on it yet, but there may be some hope for movement on the perennial issue of medical malpractice tort reform this session.

The bill that would at least nudge Hawai'i closer to reform is House Bill 1784, which has moved out of the Judiciary Committee — a barrier in the past — and is poised for the great leap to the Senate.

In what is a welcome and potentially useful compromise, the revised bill would cap the amount of "noneconomic" damages, such as emotional distress and loss of companionship, that a plaintiff could receive in a tort claim for medical malpractice.

The cap would only affect doctors in emergency medicine, neurological surgery, obstetrics and gynecology, orthopedic surgery and general surgery, areas the Hawaii Medical Association identified as more vulnerable to lawsuits. The law, and the cap with it, would expire in five years, unless data compiled by then shows it's effective — meaning it succeeded at lowering insurance premiums and removing a deterrent for doctors to practice.

But just where to set that cap would be the job of a task force that would report back next session with the recommended dollar amount.

Task forces can be the bane of those who hope for gains in a legislative agenda — they often seem like stalling tactics and appeasements. But this issue is complex, so the required assembly representing the insurance, legal and medical professions could weigh all the competing data and arrive at a reasonable limit.

In any case, HB 1784 already has some protection for victims built in: The cap on noneconomic damages wouldn't apply if the victim is awarded economic damages, such as lost wages and benefits, that are less than $1.5 million. That provision may help allay the fears of some in the Senate concerned that capped awards won't compensate victims adequately.

Doctors lobbying for such a measure point to a shortage of medical professionals in key specialties willing to practice in rural areas, and in a state composed of remote islands, that is a critical situation.

They are opposed by attorneys and advocates for victim's rights who maintain that medical tort reform has not been proven to aid in its stated goal: to improve the climate for medical practice enough that doctors would be more willing to work in these areas.

It's certainly true that tort reform is only a start, that improving reimbursement rates for physicians must be part of the solution. And further incentives are needed to draw doctors to rural communities.

Encouragingly, there's a renewed effort this session to establish the Hawai'i Health Corps Program. Senate Bill 169 just passed the key Ways and Means Committee; if it becomes law, it would launch a recruitment plan for healthcare professionals, including a loan repayment program, to help young professionals practice in shortage areas.

Tort reform is not by itself sufficient to solve the problem of healthcare access in the state, but it is a necessary component. Passage of HB 1784 at least would ensure that able minds would be brought to bear on a question that has lingered, unanswered, in the Capitol for years.