Historic Moment…Historic Results?

July 2004

Guest Editorial

Wyoming is at Historic moment when the Legislature convenes in a special session on Monday, July 12, to consider solutions to the state’s health care crisis. 

Over the past year and a half, many hearings have been held and volumes of research and data assembled -- especially with regard to why medical malpractice insurance is higher in Wyoming than neighboring states. The issue is controversial as legislators have struggled over beliefs and perceptions of reality as they see it, constituent concerns, and conflicting data and opinions from a myriad of sources. 

Most acknowledge that there is a problem with high medical malpractice insurance rates in Wyoming. Most recognize that many doctors are either leaving the state, cutting back on certain services or retiring early. It's generally accepted that physician recruitment in Wyoming, particularly in smaller communities, has been a critical problem for a number of years ... and it's now getting much worse because of high insurance rates and the loss of one of our major insurance carriers. Lastly, most would agree that accessible and quality health care is a building block for a strong economy. 

The proponents of tort reform have put forth solutions to help solve the medical malpractice insurance problem -- namely: 1.) caps on non-economic damages and 2.) temporary and emergency premium assistance for physicians. Opponents of tort reform say that citizens need protection and the right to jury trial and that insurance companies are to blame for increased medical malpractice insurance rates. 

The realities facing Wyoming speak to the obvious: 

1. The health care profession -- including doctors and support staff -- represents approximately 10 percent of the state's employment and non-agricultural wages. 

2. Wyoming is in the process of losing OHIC, one of its two major insurers for medical malpractice liability insurance (OHIC rates are lower than The Doctor's Company, the other major carrier which loses 12 cents on every dollar of insurance premium paid in Wyoming, not counting administrative costs). 

3. With the loss of the OHIC insurance company, and premium quotes that are now 30 to 50 percent more than what was previously paid, Wyoming doctors are aggressively looking at their options. For a state which already has the third-fewest physicians per capita of any state, these implications are severe. 

-- Those who are nearing retirement or can retire are thinking of doing so.

-- Younger doctors who want to continue to practice medicine are asking whether or not it's best to practice in Wyoming or in another state that offers greater protection against uncertainty and lawsuits.

-- A medical school student from Wyoming -- the next-generation caregiver -- must today ask why as an OB/GYN doctor, for example, should he or she return to Wyoming and pay $90,000 for medical malpractice insurance versus $38,000 in Fort Collins. Why not pay off the loan (as opposed to it being forgiven if I practice for three years in Wyoming) and not return to my native state?  

4. The Wyoming Healthcare Commission was entrusted by the Legislature to examine objectively and in a nonpartisan way solutions to Wyoming's health care crisis. They have made their interim recommendations, including a constitutional amendment to establish caps for non-economic damages. To date, not enough legislators (i.e., two-thirds of House and two-thirds of Senate are needed for a constitutional amendment vote) have accepted the commission's research and recommendations. 

5. Our surrounding states which have tort reform -- caps on non-economic damages -- have substantially lower medical malpractice insurance premiums (e.g., anywhere from $25,000 to $50,000, or as much as two times more based on specialty). These states have recognized the need for limits and have acted accordingly. 

Throughout the non-economic damages/tort reform debate, Wyoming's independent thinking has clouded over some of the inconsistencies that exist in the state today regarding settlements for injuries and mishaps which occur. Two examples are:

1. A different liability standard exists for government employees and government institutions than for the private sector. For example, the Casper Community Health Center and those working for it have a $250,000 cap for not only non-economic damages, but also economic/lost wages and medical treatment. This is because of the Governmental Claims Act. 

2. Wyoming citizens seeking medical treatment at Salt Lake City or Denver have elected, by going out of state, to accept caps for non-economic damages should a mishap occur. In Wyoming, there are no caps ... meaning higher costs for treatment because a doctor in Wyoming has higher insurance rates, and in all likelihood, fewer patients because of Wyoming's lower population base. 

Wyoming is the Equality State. But these two examples demonstrate disparities obviously exist regarding the question of caps on non-economic damages. 

Next week's Special Legislative Session focuses on medical tort reform issues and possible financial assistance for physicians. We should not lose sight of the fact that health care is an essential building block for a strong economy and that maintaining a good health care system is the first order of business in next week's legislative session. Nor should we lose sight of the fact that the citizens of Wyoming and their rights for "full and just compensation for injuries and or death" (as the trial lawyers, and others, would argue) is not uniformly applied (e.g., Government Claims Act). Nor should we forget that our constitution has been changed before, based on circumstances facing the state. 

Wyoming is at a historic moment and consensus is essential in order to have both historic results. The Health Care Commission's recommendations -- including meaningful caps on non-economic damages -- represent Wyoming's best interest. Wyoming people should be allowed to decide, by their votes, whether there should be caps on non-economic damages. 

Debbie Hammons of Worland is a member of the Wyoming Business Alliance's steering committee. Mick McMurry of Casper is also a member of the Wyoming Business Alliance's management committee.