At least a dozen groups of health care providers and business organizations have joined forces in what they're calling the Care Coalition to reform West Virginia's medical liability law.

What they want is a bill modeled closely on a California law that they say has been successful in preventing the cost of medical liability insurance from rising as fast as in the rest of the nation over the past 27 years.

A report issued in July from the U.S. Department of Health and Human Services says that since California passed its law in 1975, insurance premiums there have risen 167 percent, which is much lower than the 505 percent for the rest of the nation.

"This has saved California residents billions of dollars in health care costs and saved federal taxpayers billions of dollars in the Medicare and Medicaid programs," the report states.

It also notes that doctors are not leaving California, as they are in West Virginia and other states facing medical malpractice insurance crises, and there has been no effect on the quality of care received by California residents.

Dr. Ron Stollings, president-elect of the West Virginia State Medical Association, said such a law would be necessary in West Virginia before his organization could go ahead with the formation of a physicians mutual insurance company. Getting such a company formed has been the goal of both physicians, who want affordable medical malpractice insurance to be available, and lawmakers, who would like to get the state out of the business of providing such insurance.

Since last December, the state Board of Risk and Insurance Management has been providing malpractice insurance for physicians, hospitals and other health care providers unable to get it from commercial insurance companies. But lawmakers wanted that to be only a temporary solution to the state's malpractice crisis and required the agency to price its insurance at higher rates than those of private companies, a requirement a physicians mutual would not have.

"It is becoming increasingly difficult for health care providers to get affordable medical liability insurance, much less coverage at all," said Steven Summer, president of the West Virginia Hospital Association. "One of our goals is to make sure all West Virginians understand the consequences of the current medical liability crisis.
"There are risks for not having physicians and for not having medical services when they are most in need."

The Care Coalition not only wants to get lawmakers to pass legislation similar to the California law, but also hopes to influence voters to elect candidates to the Legislature who would be sympathetic to that goal, he said.

During a meeting of a legislative interim committee studying the malpractice insurance problem, attorney Don Sensabaugh of Flaherty, Sensabaugh and Bonasso presented lawmakers with the Care Coalition's proposed legislation. One of its key provisions would be to limit awards for non-economic damages, or pain and suffering, to $250,000 rather than West Virginia's current cap of $1 million but it would increase by $10,000 a year beginning in 2004 to account for inflation.

Another provision would eliminate joint liability in favor of several liability so that each defendant in a malpractice suit would be responsible only for damages in proportion to that person's degree of fault. Under current law, defendants who may be only 1 percent at fault could be held liable for 100 percent of the damages.

Other provisions would tighten the requirements for experts who testify in malpractice cases, allow for quarterly payments of large awards instead lump sum payments and provide for contingency fees for lawyers to be paid on a sliding scale instead of the 40 percent they typically get now. The higher the award, the lower the percentage of it that an attorney would receive, so that the fee for a $1 million award would be $221,000 instead of the current $400,000.

Sensabaugh, who has defended doctors in more than 400 cases, said that would still give attorneys big enough payments but would hold down the size of awards.