Fitzgerald testifies against "flawed" medical malpractice reform

Issue April 2006 By Bill Archambeault

MBA President Warren Fitzgerald argued against a number of medical malpractice reform bills under consideration on Beacon Hill during testimony before the Judiciary Committee on Feb. 28.

The proposals include changes that would place further caps on pain and suffering damages, eliminate joint and several liability, further restrict the ability to use certain expert witnesses, deduct victims' insurance compensation from a jury award and create a medical malpractice court.

In his testimony at the Statehouse, Fitzgerald warned that the various reform bills would infringe upon people's constitutional rights in favor of higher profits. Fitzgerald, a partner at Meehan, Boyle, Black & Fitzgerald PC in Boston whose practice areas include medical malpractice, told the joint committee that replacing the current system in an effort to reduce insurance premiums would be a mistake.

"The system you're proposing to replace it with is worse. The jury system isn't perfect, but it's the best we've got," Fitzgerald told the committee. "The system we have here is an integral part of our democracy, and that is that people have the right to bring their claims to court and seek redress. Please, let's improve the system we've had for 225 years and not make a wholesale change to something else."

After the hearing, Fitzgerald explained that the various bills under consideration are an attempt to increase profits by further restricting victims' ability to sue. Some of the changes being considered, Fitzgerald said, would make it nearly impossible for anyone except the wealthy to pursue legal recourse.

"The various proposed bills relating to medical malpractice would not serve to reduce insurance premiums for doctors, increase access to medical care by patients or benefit the citizens of the commonwealth in any way," Fitzgerald said after the hearing. "Rather, these various proposals are continuing efforts by the medical malpractice insurance industry to further increase profits, and they result in further restricting and denying access to justice, not only to the poor, but to all but the most wealthy."

Fitzgerald, who told the committee that lawsuits aren't responsible for rising insurance costs, was joined on the panel by Jodi M. Petrucelli, a principal at Sugarman & Sugarman PC in Boston and John J. Carroll, also of Meehan, Boyle, Black & Fitzgerald PC. Petrucelli and Carroll spoke on behalf of the Massachusetts Academy of Trial Attorneys.

"It's a matter of misperception that if insurance premiums are rising, it must be because legal costs are rising," Fitzgerald said after the hearing. "The research shows quite conclusively that there is no relationship between medical malpractice premiums charged to doctors and payments made for malpractice settlements or jury verdicts. Rather, insurance companies make their profits by investing in the markets, and there is a direct correlation between the rise and fall of the financial markets and the premiums charged to doctors."

MBA General Counsel Martin W. Healy said that while medical insurance companies claim that legal costs are what's driving up insurance premiums, "The MBA and the Massachusetts Association of Trial Attorneys have refuted that. Although the rates may rise, it's affected more by changes in the insurance industry."

Rather than placing more restrictions on victims seeking legal recourse, Healy said, what should be looked into is reforming the way the insurance industry handles premiums.

Senator Robert S. Creedon Jr., chairman of the Judiciary Committee, said at the hearing that meaningful reform would probably require adjusting premiums.

"I want to solve the problem and I don't see any solution other than subsidizing the premiums," he said.

Placing additional restrictions on victims' legal recourse - which are already considered substantial - will not lower insurance premiums, Healy said, but they will make it nearly impossible for plaintiffs, even those with strong cases, to get a fair hearing in court.

"It's always been a tough area for attorneys to recover for their clients," Healy said. "These are not easy cases to bring."

Lawyers' advocates like the MBA need to continue educating legislators about the issue, Healy said. However, it's further complicated, he said, because the Legislature has understandable sympathy for the medical community, which is struggling with rising insurance costs.

"The problem is a lot more complex than presented," Healy added.