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Message from the Chair

The Bean. Magnificent Mile. Deep dish pizza.

There are a lot of things to like about my home town of Chicago. But for doctors, the inhospitable malpractice environment is not one of them. Perennially cited as one of the nation’s “judicial hellholes,” Cook County is a notoriously plaintiff-friendly venue with often unpredictable and seemingly unjustifiable jury awards. OMIC premiums for those of us practicing here reflect this increased liability exposure, averaging $17,000, well above the national average of $9,500. Attempts at tort reform in Illinois have been about as successful as our Cubs in postseason.

To see the power of tort reform in action, one need only look west. California enacted what is now recognized as the gold standard for malpractice reform in 1975. This legislation, the Medical Injury Reform Compensation Act (MICRA), limits pain and suffering damages to $250,000. It puts no caps on economic damages, which have continued to outpace inflation by more than double. Despite these increases, malpractice premiums for California physicians have stayed below the national average, thus helping to keep healthcare costs down and retaining access for patients. Several other states have adopted similar legislation with correspondingly good results.

MICRA is now under attack. Californians will go to the polls in November to vote on an initiative that, among other things, proposes to more than quadruple the cap on pain and suffering damages to over $1,000,000. Raising caps alone is not widely popular with voters, in part because it is expected to raise healthcare costs and limit access. To sweeten the deal, the plaintiff attorney bar has added two seemingly unrelated provisions: random and post-adverse event physician drug testing, and mandatory use of a cumbersome and non-secure statewide database of patient prescription information (CURES) in order to cut down on prescription drug abuse. Focus groups have shown these issues resonate with voters. And why shouldn’t they? An informal poll of my own physician colleagues finds little resistance to drug testing. While most did not relish the thought of submitting to such scrutiny, few could offer compelling arguments why physicians should be exempt from the same workplace drug testing as other high-stakes professions, such as pilots, police officers, or school bus drivers.

One can argue the pros and cons of physician drug testing, but we feel any such debate and vote should address this issue independently and not be a Trojan Horse for dismantling the nation’s oldest and most successful initiative in tort reform.

OMIC insures 484 California ophthalmologists, over 10% of our entire insured base. As a nationwide carrier, we clearly see the impact MICRA has had on minimizing frivolous lawsuits and stabilizing malpractice premiums in California. For that reason, OMIC has chosen to support Californians Allied for Patient Protection (CAPP), a broad coalition of California-based physicians, hospitals, and other providers fighting to keep the provisions of MICRA in place.

Watch for this battle to spill over nationally in the coming weeks. The decision on Prop 46 will impact tort reform everywhere. We hope California voters will see through the smoke screen.

Tamara R. Fountain, MD, Chair of the Board