KRAMER VS.
Doctoring the Law

By IRWIN KRAMER
The Daily Record
February 2, 2004

"First, do no harm." But, if you harm, cap your victim’s recovery while blaming some other profession for the degradation of health care in America.

Rather than cap the income of those who commit medical malpractice, the medical lobby seeks to cap compensation for the very patients who have suffered the most from this negligence. Although only three percent of Maryland doctors accounted for more than half of all malpractice awards in the last 15 years, the medical profession ignores these repeated violations of the Hippocratic Oath while blaming victims and the lawyers who represent them.

Among the 2,000 doctors who rallied in Annapolis, no one protested the treatment of patients whose lives have been shattered by misdiagnoses, needless amputations, severe birth injuries and paralysis. Nor did anyone call for legislation designed to reform the disciplinary process for the few doctors responsible for these tragedies. Lacking any time for a moment of silence to remember those whose lives could have been saved, a profession which places a premium on human life took the day off to put a premium on ... premiums.

As doctors seek a cure for rising malpractice insurance premiums, they have misdiagnosed their own ailments. While they wish to treat flaws in the legal system, the test results show that they are treating the wrong patient. At a time when malpractice premiums rose dramatically, malpractice claims actually declined. According to the Maryland Office of Health Claims Arbitration, from 1996 to 2002, claims against doctors have dropped by 11.8 percent. This hardly explains why Maryland’s largest malpractice carrier raised its premiums by 28 percent in the last year alone.

Lacking a good diagnosis of this costly symptom, these ailing doctors have employed a treatment regimen that has already failed to cure the disease. Ignoring the "patient history," physicians fail to realize that the Maryland legislature has already tried to curb insurance costs by capping a patient’s recovery for the pain and suffering of medical malpractice. In 1986, the Maryland legislature eliminated multi-million dollar awards for such "non-economic damages" in all personal injury cases by passing the very same $350,000 damages cap which the doctors endorse today. Rather than reducing premiums, the insurance industry exponentially increased them since the passage of this cap.

Though Maryland’s cap has grown with inflation to $635,000, there is no evidence that turning back the clock to 1986 pricing will restore 1986 premiums. If anything, recent "tort reform" legislation in California and other states shows that malpractice carriers will only increase their premiums even more. As the insurance industry raises revenue, doctors continue to pay and patients continue to suffer.

While he probably never paid malpractice premiums, Hippocrates placed a premium on the needs of his patients. Taking an oath that he would never advocate a system which would punish the patient for the good of the doctor, the Father of Medicine promised to "follow that system of regimen which, according to my ability and judgement, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous." Although some may rally to protect a small percentage of doctors at the expense of patients who have suffered the most, doctors should honor this ancient oath and abstain from whatever is deleterious and mischievous.