May 26, 2004
Dear Editor:
Access to quality medical care is an issue of critical importance to the state and citizens of New Jersey. But the recent approval by the Assembly of ACS-50 looks to attorneys to solve a problem that they did not create, and it does so by posing a false dichotomy between two undesirable alternatives.
In a key portion of the new act, every attorney will be assessed $75 to subsidize the rising insurance premiums of high-risk specialty doctors. There is simply no connection between medical malpractice claims against doctors and the overwhelming number of lawyers who will have to pay an assessment to help doctors with their insurance coverage. Less than one percent of attorneys practice in this area and many of those defend doctors. Furthermore, the current list of groups assessed under the bill is arbitrary and excludes other professionals who are routinely involved in medical malpractice claims, such as nurses, EMT workers and hospital administrators. The assessment penalizes the entire legal community for the work that a few specialists do to protect the interests of clients and seek redress for injuries. Yet this is precisely what lawyers are supposed to do and what our society expects of them.
The assessment will also be used to assist medical students in paying off some of their student loans. Ironically, many of the lawyers who will pay the assessment are themselves paying off law school loans. Coupled with increasing legal malpractice insurance premiums, the cost of practicing law has just become more expensive. Perhaps we, too, should look to the Legislature to direct doctors to help bail out lawyers.
The public should not be fooled by the rhetoric of doctor's groups and the insurance industry. According to the State Administrative Office of the Courts, the number of medical malpractice cases has been declining, they represent less than two percent of all civil cases filed in state courts, most are settled, and doctors win the vast majority of cases that do go to trial (151 out of 205 jury verdicts in 2002). Hence, the claim that there must be limitations on the size of medical malpractice awards ignores the reality of medical malpractice decisions.
The legislation also creates a new study commission. This commission should have been set up first, before the Legislature precipitously acted. We have now been handed a "solution" without first determining the cause of the problem. So for example, while Assemblyman Neil Cohen recently attributed the problem, in part, to "bad business decisions by what had been the state's biggest malpractice insurer," it is lawyers and litigants rather than insurance companies who are being asked to pay. Whether the medical malpractice "crisis" results from bad business decisions, bad doctors, a lagging stock market or insurance company losses are matters best explored in the light of reason and analysis by experts in the field. No reasonable doctor would recommend a course of treatment without a proper diagnosis, but that is exactly what the Legislature has done.
