Capitol Idea

Here's a solution: Let's make the crippled guy pay!


So there's these guys with a mutual problem of their own making. It's a complex problem, one that's going to cost to fix.

But these are big, strong, monied guys with a lot of pull. Why accept responsibility if you don't have to? Better to find a patsy, a guy who can't punch back. And in the realm of patsies, there's no better mark than a crippled guy. That's just good business.

This, my friends, is the Reader's Digest version of Ohio's latest crisis, which is not to be confused with the education crisis, the budget crisis, the steel crisis, or the vaunted Quiet Crisis. No, we speak today about medical malpractice, the state's crisis du jour.

To recap: Ohio doctors have seen upward of 40 percent increases in their malpractice insurance. So they have taken to rallying in Public Square, lobbying patients, and sending large piles of money to Columbus so legislators may better see their plight. As the ancient Bulgarians were fond of saying, "The more Benjamins in my pocket, the better my eyesight gets."

At first, doctors and insurers attributed rising premiums to a surge in malpractice suits. The blood-sucking lawyers are out of control! It's an outrage!

Unfortunately, they forgot to check whether this was actually true. "A few months ago, we did a review and did not see any significant change over the last decade," says Doug Stephens, director of judicial and court services for the Ohio Supreme Court. Oops!

Yet as dedicated students of the fabrication arts, they quickly prepared a backup position. "Okay, so we were wrong about that first outrage. We meant to say that jury verdicts are out of control. Yeah, that's it. And we're pretty sure this is a real outrage!"

With that, the Ohio State Medical Association merrily went about pitching a study by Jury Verdict Research, a Pennsylvania company that investigates this stuff. It notes that the median malpractice award "increased by 43 percent" between 1999 and 2000, according to OSMA spokesman Bill Byers.

But this is national data, and there's a big difference between Southern California, where they sue God when the sun doesn't shine, and Cincinnati, where only six people can even spell "litigation." Besides, the same study showed that the median settlement -- the far more common way of ending a beef -- actually decreased by 15 percent. It also showed that juries are generally pro-physician, giving doctors the win in 60 to 70 percent of all suits.

For propaganda purposes, the news wasn't much better in Ohio. A Plain Dealer study of Cuyahoga County -- the supposed hotbed of juries run amok -- showed no major increases since 1992. In fact, wrote The PD, "Last year, juries ruled in favor of injured patients less than half as often as they did in 1995, court records show. A smaller percentage of their verdicts involved million-dollar awards than in 1995, and the total for all verdicts was 28 percent lower last year."

Forgive our public school math skills, but this doesn't seem like a quality outrage. In fact, it looks suspiciously like premiums should be going down.

Which leads us to our second player in today's crisis: the insurance industry, otherwise known as People Who Admire Pol Pot's Management Theories.

This isn't the first time insurers have sounded the siren of the apocalypse. Cleveland attorney Jack Landskroner pegs it as Episode No. 4. "Every six or seven years there's another crisis, and we have yet to establish there is a crisis."

These crises tend to occur during Wall Street slumps. Here's how it works: Insurers invest your premiums. That's how they make their money. During the '90s, investors were making big scratch, which allowed insurers to keep premiums low. Then came the stock market collapse. "Their investment income went down, just like everyone else's," says state Senator Eric Fingerhut (D-Shaker Heights).

Problem is, it's illegal in Ohio to jack rates just because your portfolio tanked, says Fingerhut. Premiums are supposed to be altered based on claims. So insurers had to think up a crisis. Presenting . . . the old Out-of-Control Litigation Scam.

It may have been a naked lie, but this is the same industry that once tried to force new mothers out of the hospital 12 hours after giving birth, that used to deny emergency-room coverage to people in comas -- bastards didn't have the courtesy to regain consciousness and get pre-authorization.

Say what you want, but it takes Buick-sized cojones to do this stuff with a straight face. These guys are so good, they've convinced doctors -- the very people they're screwing -- to assist in their own rape.

It's an odd coupling, to say the least. Ask any doctor about the insurance industry, and be sure to wear a flame-retardant suit. They're going to spit fire, and for good reason. Their profession has been reduced to essentially serving at the pleasure of a guy named Skipper at the insurance company, who's likely a history major who couldn't get a job anywhere else -- which naturally makes him qualified to tell doctors which procedures they can do. But for some reason, docs have forgotten all of this. They'll believe anything right now, just so their rates go down. Can you say "gullible," boys and girls?

So insurers put doctors up as the frontmen. After all, they couldn't go to the legislature on their own. It would look a little too much like the priest who eagerly volunteers to chaperone the Boy Scout troop. Better to get the white coats and the kindly faces out front. Let the public hear tragic tales about clinics closing, obstetricians who can no longer afford to deliver babies.

You gotta admit: It's a beautiful scam.

Which leads us to player No. 3: the legislature. Its logical move would have been to summon all parties -- lawyers, doctors, insurers -- and say, "Look, you guys made this mess. You want it fixed? Then everybody's gotta take a hit."

But the legislature operates on a simpler proposition: Feed it money, and it'll do what you wish. Which means it had to find someone with no cash, no strength, to take the fall.

Yes, this is Ohio's solution: If lawyers won't stop filing bogus suits, if doctors won't stop amputating the wrong leg, and if insurers won't stop ripping off their clients, let's get crippled guys to pick up the tab!

So last week, a legislative conference committee agreed to a bill that limits pain and suffering damages to $300,000 to $500,000 per person. It may sound like a lot, but if a doctor has left you wheelchair-bound or breathing through a tube for the rest of your life, this is nothing. Mind you, even the medical association's Byers can't think of a single egregious jury award in Ohio. It's just that there is no People Who Got Mangled by Doctors Association throwing money around Capitol Square. Which means they have to take the hit.

Byers and state Representative Tim Grendell (R-Chester Township), who authored the House version of the bill, don't even bother to use the rising-jury-award move anymore. Ask them about it, and they quickly change the subject.

Grendell prefers the bottom line: "In the states that have capped non-economic damages, malpractice insurance rates have not risen anywhere close to the states that haven't capped them." And his bill does have some good things, like requiring court clerks to compile data on such cases. When Episode No. 5 airs in 2009, insurers won't be able to run the same scam.

What the bill doesn't have is new penalties for lawyers who sponge the system. It doesn't have stronger sanctions for doctors who repeatedly maim their patients. It doesn't force insurers to prove to the Department of Insurance why they need to jack their rates 40 percent. The main players, they all got a pass.

It didn't have to go down like this, Fingerhut believes. The 1980s crisis was solved by a state-run insurance fund. It actually had a $50 million surplus until then-Governor Voinovich swiped it to remedy other budget woes, claiming the fund was no longer needed.

Ohio also had a doctor-run insurance fund, which worked well until "the original director retired and the new guy turns out to be a crook," says Fingerhut. The fund began to collapse; the state forced it to disband.

At the very least, renewing both would have been an attempt at a long-term solution. But they would bring new competition for insurance companies. Not gonna happen. Not with this legislature, which is so pro-business, it thinks Santa Claus is a Marxist.

All of which leaves insurance executives kicking back, drinking single-malt scotch, and congratulating each other on a scam well executed. They have the legislature in their pocket. They've duped doctors into playing the mouthpiece. And now they have a bill that limits what they can lose, all because they made up this story about rising litigation costs and artificially jacked their rates. "Don't help us," they said, "and we're gonna have to drive some doctors out of business."

In most places, this is called extortion. In Ohio, it's just good business.

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