Colorado Springs Gazette staff editorial 

Some of the same Colorado Democrats who want health care reform, promising to make it more available and affordable, support a proposal by trial lawyers that would run up the cost of care and aggravate a doctor shortage that has only begun.

Politicians who feign support for affordable health care, while supporting Senate Bill 164, are either confused or they’re lying. Either way, they’re paying favor to trial lawyers — a loyal constituency — while selling out the cause of health care for all.

The three Democrats on the Senate’s five-member State, Veterans & Military Affairs Committee recently voted to move forward with Senate Bill 164, which would substantially increase the awards granted by judges and juries in malpractice suits. If the bill passes, doctors would be hit with increases in their malpractice insurance premiums. Senate President Peter Groff introduced the bill, and Sens. Abel Tapia, Chris Romer and Sue Windels voted it through committee.

Most Colorado physicians carry insurance policies that pay up to $1 million in damages for each incident of malpractice. Senate Bill 164 would effectively shred the $1 million liability guideline known as a “soft cap.”

“If I keep the same policy, and this bill passes, I will be looking at a 12 percent to 14 percent increase in my premium,” said Dr. Dave Ross, a long-time Colorado Springs emergency room specialist and medical director for American Medical Response.

That’s bad enough, because malpractice premiums comprise a whopping 10 percent of the average Colorado physician’s overhead — and considerably more for some specialists such as brain surgeons. Worse, however, is the fact that no doctor in his or her right mind would maintain current coverage if the trial lawyers’ bill were to pass. They would need double or triple the amount of coverage, because potential awards — for legitimate and frivolous lawsuits alike — would increase substantially.

Here are some economic facts anyone should consider before supporting this bill:

- Doctors, like all other professionals, pass their costs to consumers in order to stay in business. Pricier insurance for doctors, therefore, would result in higher health care costs. Higher health care costs would not, under any circumstance, make health care more affordable or accessible.

- Because Medicare and Medicaid would refuse to pay the higher costs, the increase would disproportionately inflate the premiums on private health insurance, and more people would find themselves uninsured.

- Higher overhead in Colorado would mean fewer physicians desiring to practice here.

- Fewer physicians in Colorado would mean a further reduction in access to health care.

- A lower supply of health care would increase the cost even beyond the increase in liability premiums.

Yet Groff and the senators who passed this measure through committee are likely to support the top recommendation of the Legislature’s Blue Ribbon Commission on health care reform. The commission recommends a law that would require all Coloradans to buy health insurance. Those who can’t afford it would receive subsidies.

All that, of course, would increase demand for health care on the heels of a trial lawyers’ bill that can only make health care less available and more expensive. It’s like promising a chicken in every pot — right after creating new expense and liability for chicken farmers. It ignores the scientific principles of supply and demand. It places emotion over logic.

“This is the wrong step for Colorado at absolutely the wrong time,” said Bill Lindsay, who chaired the Blue Ribbon Commission, at a Capitol news conference Feb. 18.

“The crisis in health care is a crisis in cost. This throws gasoline on the fire,” said Sen. Josh Penry, R-Grand Junction, at the press conference.

A few Democrats, including Aurora Sen. Bob Hagedorn, have also expressed dismay over the bill.

Unquestionably, patients need the option of civil redress when doctors make mistakes. When a court holds a doctor liable for a patient’s pain and suffering, and loss of income, it helps ensure excellence in medicine by demanding accountability. It also mitigates some of the horrific suffering that can result from medical negligence.

However, in the interest of maintaining a competitive marketplace of services — one in which patients can afford health care — liability must have limits. A $1 million award to a patient holds the physician accountable, while giving some relief to the victim. Is it enough to undo the trauma of terminal brain damage? No, but nothing could be. The courthouse can’t right all wrongs.

Under today’s law, physicians are roughly assured that awards won’t exceed $1 million and they plan accordingly. Judges pierce the cap on occasion, mostly in response to gross negligence or substantial loss of income.

The trial lawyer’s bill would increase a cap on non-economic damages from $300,000 to $462,000. It would add a category of relief called “physical impairment and disfigurement,” in which awards could reach $500,000. Throw in economic damages — the money awarded for lost income — and awards would routinely exceed $1 million.

“Our exposure would increase substantially, as would the cost of health care,” Ross said.

It is mathematically impossible for the Legislature to give us more affordable health care, and at the same time give trial lawyers this gift of inflated awards. The causes are diametrically opposed to one another. If politicians tell you we can have it both ways, tell them they’re lying or confused.