Bill raising malpractice cap clears first hurdle

Opponents say measure would make health care increasingly unaffordable

February 19, 2008 - 12:12 AM
THE GAZETTE

DENVER - Despite fierce opposition from doctors, a bill changing compensation for impairment or disfigurement from medical malpractice cleared its first hurdle Monday.

The Senate State, Veterans and Military Affairs Committee approved SB164 by a 3-2 party-line vote. The bill now heads to the Senate floor for debate.

Victims of medical malpractice now can receive $300,000 for noneconomic damages, which include physical impairment, disfigurement and diminished quality of life. The bill would raise that to about $450,000 to account for inflation, and impairment and disfigurement would not be subject to that cap.

Senate President Peter Groff, D-Denver, sponsored the bill, which he called moderate and reasonable. The changes are in the spirit of the 1988 Health Care Availability Act, which limited the amount doctors could pay if found guilty of malpractice, he said. Under that law, impairment and disfigurement weren’t considered noneconomic damages, but a law passed in 2003 changed that.

Doctors and lawyers testifying against Groff’s bill said changing back would lead to a dramatic increase in malpractice insurance rates. The state’s $1 million cap on damages a plaintiff can receive would become meaningless, opponents said, as the damages for impairment and disability would escalate. That would lead to more judges overriding the $1 million cap, which they can if there is proof that the economic damages caused by malpractice exceed that amount. Insurers would raise premiums to compensate.

Those testifying against the bill painted a bleak picture of how that would affect health care in Colorado. Dr. David Downs, president of the Colorado Medical Society, said it would become too expensive to work in rural areas or become a primary care physician, and the riskiest specialties would be understaffed because of fear of lawsuits. Doctors would prescribe unneeded tests to protect themselves from lawsuits, and health care would become increasingly unaffordable.

The fear of increasing costs has led a prominent advocate of broadening health care coverage to speak out against the bill. Bill Lindsay said it would undermine the work of the Blue Ribbon Commission for Health Care Reform, which he chaired, and that it was “the wrong step for Colorado at absolutely the wrong time.”

Backers of the bill said those concerns are greatly exaggerated. Melissa Kuipers, the legislative director for the Colorado Trial Lobbyists Association, testified that most states in the region place no cap on what victims can receive, and studies from the American Medical Association show doctors are not driven from those states by high premiums.

Groff said he expects doctors and their lobbyists will continue to fight the bill once the full Senate takes up the debate.

They are already using “fear, threats and distortion” to fight something that would affect “about a handful of . . . cases every year that dramatically alters (someone’s) quality of life,” he said.

In 2006, 13 malpractice cases went to trial in Colorado. Of the six cases won by the plaintiffs, five exceeded the $1 million cap.