Gov. Eliot L. Spitzer can hardly expect a more difficult test than with his plan to investigate the causes of New York's sky-high medical malpractice rates. The probe is urgent, with those rates having just risen a punishing 14 percent, and threatening to drive more doctors out of New York.
In taking it on, though, Spitzer will come into conflict not just with the insurance industry, which is powerful enough, but also with the New York State Trial Lawyers Association, which has a huge amount of clout with the Assembly, whose leader, Sheldon Silver, is associated with a prominent plantiff's law firm in New York City.
The lines have long been drawn in this battle, with doctors and insurers blaming the state's malpractice system for allowing massive awards. Lawyers, meanwhile, blame doctors and insurers, contending that malpractice insurance rates reflect both a higher level of carelessness among New York doctors and greed within the insurance industry.
The answer needs to be found, because the threat of massive judgments and the related costs of malpractice insurance are driving doctors out of New York. Everyone may turn out to play a role in this problem, but the lawsuit system is a primary culprit.
Doctors acknowledge that when they make a mistake that harms a patient, they should be held liable. Insurers acknowledge that their industry is cyclical, with a weak investment market prompting higher premiums. Lawyers, though, insist their hands are clean; that a civil justice system which places no limit on non-economic damages, such as pain and suffering, plays no role. They are too modest.
Consider: With New York's no-fault automobile insurance system, premiums here have risen no more than 8.4 percent in any year since 1996. In six of those years, including the last three, rates declined.
Recent experience in Texas demonstrates the impact of reforming the civil justice system. There, malpractice insurance premiums have fallen 21.3 percent since 2003, when the state placed a $250,000 cap on non-economic damages in malpractice cases.
As a result, the state's physician licensing board has been overwhelmed by applications from out-of-state doctors wanting to practice in Texas. The board received 4,000 applications for medical licenses in 2006, the Associated Press reported last week, up from 2,992 the previous year. A spokeswoman said the board expects to approve 2,750 new licenses this year, 235 more than last year. There is a backlog of more than 2,398 applications.
We haven't supported a hard, inflexible cap on non-economic damages, such as Texas has imposed, but some range of limits is necessary, for reasons of economics and also of justice, which is not served by a Wild West system that eschews any kind of predictability. And, clearly, differing standards and practices from state to state are a huge part of that problem.
That's the reason sentencing of criminals is delineated by a range of possible punishments. It's what prevents a murderer in one courtroom from getting probation while a shoplifter in the next one gets life in prison.
The civil justice system needs some similar set of guidelines on unquantifiable non-economic damages, one that protects the legitimate interests of injured New Yorkers -- in this case, patients -- while ending the free-for-all that is driving doctors out of New York.