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Medical Care Under Liability Crunch

Imagine that your teenage daughter is very ill and in need of immediate medical attention. You learn she is suffering from myasthenia gravis, a condition involving shortness of breath due to muscle weakness. Such shortness of breath can become severe enough to require hospitalization for breathing support, as well as treatment for the underlying infection. If the problem is not identified and treated correctly, it could lead to death.

At the same time, you discover that because of the medical liability crisis, there is no emergency room neurologist on call to assist your daughter. You are told they are too afraid to become involved in difficult cases like this because of the high risks of medical liability. Instead, your daughter must be transported to a neighboring state by helicopter to receive the care she needs. Because of the reasonable laws in that state, neurologists aren’t afraid to take the emergency call.

This is what one family in my home state of Nevada faced. As the father of a teenager and two young children, I can only imagine the fear and anxiety that struck that family. With all of the medical advances and technological tools we have at our disposal, it is hard to believe that this hole in medical services still exists. But it does, and many fields of medicine are suffering — but mostly it is our nation’s families paying the price.

That is because many doctors in Nevada and in states across the country are being forced to react to skyrocketing medical liability insurance premiums that are unaffordable or unavailable. With no other options, they are shutting down their doors, moving to other states, retiring early or narrowing their practice of medicine. Doctors who had been obstetricians and gynecologists are tailoring their practice to gynecology — a specialty with much lower insurance premiums. Other specialists are no longer providing emergency calls or performing certain high-risk procedures, like in the case of the teenage girl with myasthenia gravis.

The cost of medical liability insurance has risen out of control because there is no stability in the marketplace for providing the insurance. Our healthcare system is fraught with frivolous lawsuits and outrageous jury awards, which makes predicting costs impossible.

And the price is getting heftier — for doctors and patients — with each year that a national solution is not implemented. That is why I have introduced and continued to fight for the Help Efficient, Accessible, Low-Cost, Timely Healthcare Act of 2005, also known as the HEALTH Act. This legislation addresses the national crisis that threatens the health of our families. It is responsible reform that includes a $250,000 cap on non-economic damages, joint liability and collateral source improvements, and limits on attorney fees according to a sliding award scale.

The HEALTH Act does not limit the amount of economic damages that an injured patient can recover. Like every other profession, mistakes are sometimes made by healthcare providers. Patients who suffer from these mistakes should have access to unlimited economic compensation and should be able to recover losses, such as loss of past and future earnings. And injured patients should also have access to punitive damages where providers are found to be grossly negligent. But, there is no way to quantify a patient’s “pain and suffering,” and most often, no dollar amount is ever enough. Placing a reasonable limit on these non-economic damages helps bring accountability back to our civil justice system by weeding out frivolous lawsuits.

My legislation also includes an expert witness provision to ensure that relevant medical experts serve as trial witnesses instead of so-called “professional witnesses” who are used to further abuse the system. The legislation is modeled after California’s successful Medical Injury Compensation Reform Act, which has brought about real reform to California’s liability system.

That is why the teenage girl in Nevada with myasthenia gravis was able to get the critical care she required in California — because MICRA limited non-economic damages and reigned in the cost of medical liability insurance premiums for health care providers there. Doctors in California do not avoid delivering babies or shy away from performing high-risk procedures, and patients in that state are reaping the benefits of effective medical liability reform by having the access they need.

Unfortunately, too many patients nationwide do not have that access. In Arizona, Florida, Mississippi and Pennsylvania, even hospital emergency departments have felt the impact of the medical liability crisis. Hundreds have closed down in recent years. In Las Vegas, our only Level I trauma care center closed for 10 days in 2002, leaving every patient within 10,000 square miles without a trauma unit. One man died during that closure when he could not obtain access to timely, emergency trauma care.

This crisis is costing lives and is depriving too many patients of access to quality medical care when they need it most. It is time to come together and enact a solution that will give patients all over the United States the peace of mind that comes with having doctors to deliver babies, specialists to deal with complicated procedures, and hospitals to remain open for their emergency needs.

We cannot afford to ignore this crisis, and finding the solution should not pit lawyers against doctors or Republicans against Democrats. Each and every one of us should consider how we would feel if a member of our family was denied critical, live-saving medical care. The answer is clear that we must reform the system immediately. The health of our citizens depends on it.

Sen. John Ensign (R-Nev.) is a member of the Health, Education, Labor and Pensions Committee.

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