Hurdles too high this year for tort reform

As the state's physicians gather in Charleston this weekend for the annual meeting of the S.C. Medical Association, there will be no higher priority issue than tort reform. The doctors will insist again that without some limitations being placed on awards in medical malpractice cases, their insurance costs are endangering economic survival.

With Republicans dominating the Statehouse and the Governor's Mansion and big business in the form of the S.C. Chamber of Commerce pushing for tort reform, its chances might seem good. Not so.

A state budget crisis has kept Republican priorities elsewhere even as high-profile negatives are working against tort reform.

First, there is the matter of testimony in April by a Columbia physician before a House Judiciary subcommittee. Dr. Harry J. Metropol's remarks leave even allies of tort reform ready to run for cover.

Commenting about a Wisconsin woman who lost her breasts because of a medical mistake, Metropol said, "She did not lose her life, and with the plastic surgery, she'll have breast reconstruction better than she had before. ... It won't be National Geographic, hanging to her knees. It'll be nice firm breasts.''

Wow!

The veteran physician defended his remarks by saying, "This isn't a beauty contest; it's about the survival of South Carolina.''

That may be, but shocked lawmakers aren't likely to line up with him now.

Matters got worse this past week when Common Cause, a government watchdog group, called for a state investigation after Rep. Shirley Hinson said she was offered a bribe to support the tort-reform legislation. Even though the head of the organization identified by Hinson said the bribery allegations are "completely and totally false,'' there will be ramifications as the matter is sorted out.

Hinson, R-Goose Creek, said the group South Carolina First mailed postcards to her constituents distorting her view on tort reform. She said when she complained, the group offered through a third party to retract its statements if she supported the legislation.

"They offered a bribe," she said. "They said they would be willing to send out another postcard, take out some advertisements in the local newspaper and help me with raising some money for my next campaign if I support the bill."

Amid the spectacle, there is the core issue of tort reform, which is being considered on the federal level, too. President Bush is in support.

South Carolina is among 32 states identified by the American Medical Association as showing "problem signs'' that could lead to a full-blown crisis in malpractice insurance.

For now, South Carolina's rates are some of the lowest in the nation, but they're climbing. The average premium across all specialties is $18,655, with the leading insurer's premiums rising 35 percent in 2002.

Will damage caps change that? The average cost in states with such caps is $30,521, according to the October 2002 Medical Liability Monitor. And in nearby Georgia, a $250,000 cap on damages hasn't prevented a corresponding 35 to 40 percent increase in malpractice premiums.

South Carolina is eyeing a similar cap, with awards for punitive damages and damages from pain and suffering each being capped at $250,000. Actual damages would remain unlimited. The totals are a far cry from the $17.5 million awarded a Pendleton woman in a 2001 malpractice case. Even the final award reduced to $10.25 million was a state record.

Critical or not, the tort legislation is on the critical list for this session. Cast aside the peripheral issues, we have questions about the proposed dollar limits in malpractice cases. While limiting awards is not to be opposed outright, there remains the fundamental societal need for persons to seek just remedy in civil courts. And, as in the case of the Wisconsin woman, the remedy may not be $10 million, but it's a lot more than $250,000 in terms of dollars.

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