ASSEMBLY BANKING AND INSURANCE COMMITTEE
ASSEMBLY HEALTH AND HUMAN SERVICES COMMITTEE
"Testimony on a proposal to provide medical malpractice
premium assistance for New Jersey physicians"
Committee Room 4
May 1, 2003
MEMBERS OF COMMITTEE PRESENT:
Assemblyman Neil M. Cohen, Chairman
|Mary C. Beaumont||Sheila Kenny||Marianne L. Ingrao|
|David Price||Wali Abdul-Salaam||Tasha M. Kersey|
|Office of Legislative Services||Assembly Majority||Assembly Republican|
|Committee Aides||Committee Aides||Committee Aides|
Meeting Recorded and
The Office of Legislative Services, Public Information Office,
Hearing Unit, State House Annex, PO 068, Trenton, New Jersey
ASSEMBLYWOMAN LORETTA WEINBERG (Co chair): Good
morning, ladies and gentlemen, and welcome to the Joint Hearing of the
Assembly Banking and Insurance Committee and the Assembly Health and
Human Services Committee.
David, would you please take the role for the Assembly Health
MR. PRICE (Committee Aide): Assemblyman Kean.
ASSEMBLYMAN KEAN: Here.
MR. PRICE: Assemblywoman Pou.
ASSEMBLYWOMAN POU: Here.
MR. PRICE: Assemblyman Chivukula.
ASSEMBLYMAN CHIVUKULA: Here.
MR. PRICE: Assemblyman Conaway.
ASSEMBLYMAN CONAWAY: Here.
MR. PRICE: Assemblywoman Weinberg.
ASSEMBLYWOMAN WEINBERG: Here.
Assemblyman Green is here.
MR. PRICE: And Assemblyman Green.
A quorum is present.
ASSEMBLYWOMAN WEINBERG: Take the role for the
MS. BEAUMONT (Committee Aide): Assemblyman DíAmato.
ASSEMBLYMAN DíAMATO: Here.
MS. BEAUMONT: Assemblyman Bateman.
ASSEMBLYMAN BATEMAN: Here.
MS. BEAUMONT: Assemblyman Smith.
ASSEMBLYMAN SMITH: Here.
MS. BEAUMONT: Assemblyman Impreveduto.
ASSEMBLYMAN IMPREVEDUTO: Here.
MS. BEAUMONT: Assemblyman Conners.
ASSEMBLYMAN CONNERS: Here.
MS. BEAUMONT: Assemblyman McKeon.
ASSEMBLYMAN McKEON: Present.
MS. BEAUMONT: Assemblyman Cohen.
ASSEMBLYMAN NEIL M. COHEN (Cochair): Yes, here.
ASSEMBLYWOMAN WEINBERG: Just to lay out the outline of
this hearing this morning: We are not going to be taking official action this
morning, because we have not officially received the Senate version of the
medical malpractice bill, because our board has not been open since the Senate
passed its bill. The discussion, we hope, mainly will be on the issues that we are
going to put into our bill -- of the direct premium assistance, and the method of
funding to come up with that premium assistance. So thatís the gist of our
conversation this morning, although we will, certainly, give people some latitude
in what they want to testify for.
So, with that as the parameters, I would like to first call on our
Majority Leader, Assemblyman Joseph Roberts, who has some comments heíd
like to share with us.
A S S E M B L Y M A N J O S E P H J. R O B E R T S JR.:
Assemblywoman Weinberg, thank you very much; Assemblyman Cohen, and
to the members of the Committee -- itís a pleasure to be with you. I want to
begin by thanking each and every member of this Joint Committee for the time
that you have devoted to this issue. It is clear that this is an issue that has
appropriately dominated the public debate, because it affects so many
healthcare providers and so many people who depend upon them. And you are
all to be commended, and on behalf of myself and Speaker Sires and your
colleagues in the General Assembly, I want to say, irrespective of where you are
on this issue, thank you for the commitment that you have made to tackle this.
I want to particularly thank Assemblywoman Weinberg and
Assemblyman Cohen, as the Chairs of this joint effort, and Assemblyman John
McKeon, who is one of my cosponsors on Assembly Bill No. 50. They
particularly have distinguished themselves by devoting countless hours to this
issue in meetings, that many of you recognize occur sometimes out of the glare
of the television cameras and the media, where a lot of the real hard work is
done. Theyíve been great, great credits to the General Assembly. So, Loretta
and Neil and John, particularly, thank you so very much for the work that
As the Chairwoman said at the outset, this is not official
consideration of Assembly Bill No. 50, or any specific piece of legislation today,
because itís not technically been received by the Assembly yet. But I wanted to
just take a few moments to talk about the concept of premium assistance and
why we think that is meritorious, and why we believe that is, in fact, the way to
go. Assembly Bill No. 50, in the manner that it is currently proposed by the
sponsors, would create a five-year, $150 million fund for direct, immediate
The Department of Banking and Insurance, the Department of
Health and Senior Services would establish criteria to ensure that the hardest hit
physicians would be entitled to this assistance. The criteria in order to
participate would include whether the physician practices in a certain high-risk
speciality, whether his or her premium increase exceeds certain threshold
percentages, whether the increase will have an adverse impact on the physicianís
ability to practice, whether the physician has been subject to any disciplinary
action, and whether the overall impact of premium increases, when patient
access to medical care in the applicantís geographical area or region--
The intent of this is that physicians in high-risk specialities and subspecialities,
such as obstetrics and neurosurgeons, will directly, immediately
benefit from this subsidy. Our proposal will be fashioned in a manner similar
to what the Senate has advocated: namely, a modest, $3 assessment per
employee; a $50 annual surcharge on doctors, lawyers, and certain other
professionals. Approximately $30 million will be generated per year through
these assessments. And as you know, the fund would sunset at five years.
Assembly Bill No. 50, as amended by the Senate, also allows the
courts to overturn jury awards that are "clearly inadequate, excessive, or
disproportionate." This is very, very important for those who are concerned
about the occasional inappropriate jury verdict that in many cases has had an
adverse impact on premiums. That approach gives the courts flexibility to
overturn these unfair awards, and is, in my judgment, superior to imposing a
harsh and subjective ceiling on compensation for victims of substandard medical
In contrast to what is currently contained in the bill, as amended,
in the Senate, there is simply no way of knowing whether or not the Senate fund
will provide the sufficient relief to med-mal victims. We have heard that the
fund, which appropriates $30 million annually, may conceivably need upwards
of $80 million per year in order to meet its obligations, thus creating a potential
$50 million per year shortfall.
In my judgment, it is reckless to take such a risk, especially given
the lack of evidence establishing the correlation between caps on noneconomic
damages and a reduction in medical malpractice premiums. The Senate
legislation establishes a task force to examine the caps issue, which we support
in order to gather more information on this very important issue. But the
information we have now does not justify imposing a cap on noneconomic
California is often cited as a state where caps on noneconomic
damages have worked, but the Foundation for Taxpayer and Consumer Rights
reports that between 1991 and the year 2000, the average premium increase in
California was 3.5 percent, and it actually grew more quickly than the national
average, which was 1.9 percent. Caps on damages have been declared
unconstitutional in seven states: Alabama, Florida, Illinois, New Hampshire,
South Dakota, Texas, and Washington.
Letís take a minute and discuss who gets hurt by caps. Caps
disproportionately impact our elderly, which is why the AARP has spoken out,
as recently as this week, against caps. Our older citizens are victims of medical
mistakes and may not suffer economic damages, but they do suffer tremendous
pain and suffering. The sad truth is, if there are caps on noneconomic damages,
many attorneys will not pursue cases on behalf of older victims in New Jersey.
Caps on noneconomic damages also discriminate against low- and middleincome
workers who do not receive large economic damages that are attributable
to their lost earning capacity.
Caps in medical cases discriminate, as well, against women, who are
more likely to be the victim of medical malpractice than men, and who are more
likely to suffer the types of injuries, such as miscarriage or loss of reproductive
capacity, that simply may not translate into lost wages, but certainly take a
tremendous toll on victims. Caps on noneconomic damages discriminate
against our children, who will suffer for a greater number of years than adult
med-mal victims, but who will run the risk of not being fully compensated for
their disability before being capped at an arbitrary amount.
Most persuasive of all is that caps simply are not fair. A victim of
medical malpractice does not "win a jackpot." These are individuals who may
be paraplegic, blind, disfigured, or brain-damaged because of a medical error.
In my view, Assembly Bill No. 50 preserves our system of allowing jurors to
determine the appropriate level of damages for victims, but allows courts
unprecedented latitude to correct the occasional egregious misjudgment. It is a
balanced and appropriate way to achieve medical malpractice insurance reform,
without doing so on the backs of seriously injured victims in New Jersey.
My colleagues, let me just conclude, again, by thanking you for
your efforts. It is our job, on important public policy issues like this, not,
frankly, to choose one side or the other, but to search for that middle ground,
to search for that balance that protects all the parties, the interested parties, in
an appropriate fashion -- and, if you will, doesnít take the easy way out. It
would be very easy to side with the Medical Society, or the trial bar, or the
patient advocates and give any group anything that they wanted.
Your work has been to work on that middle ground, and I
compliment you for that. I know that you have many important witnesses to
hear from today, and I want to thank you again for the hours that you have
devoted to this matter.
Thank you very, very much.
ASSEMBLYWOMAN WEINBERG: Thank you very much,
Majority Leader -- and, I neglected to mention, the prime sponsor of A-50.
ASSEMBLYMAN ROBERTS: Thank you, Assemblywoman.
ASSEMBLYMAN COHEN: Physicians and Patients for Quality
Care. If each of you could state your names and the organizations you
represent, and you have to press the red button to speak.
R O O N E Y S A H A I: Good morning, Madam Chair, Mr. Chairman, and
honorable members of the Committees. My name is Rooney Sahai, and I serve
as the Executive Director for Physicians and Patients for Quality Care. I have
here three of my colleagues: Dr. George Ciechanowski, heís on my right side.
Heís a pulmonary medicine specialist in Hudson County. Dr. Delores Lao is an
OB/GYN from Secaucus, New Jersey. Dr. Juliano is an orthopedic surgeon from
Bergen County. We would like to thank you for the opportunity to come before
you and state our position.
A lot of debate has occurred on caps. We feel that any position
that compromises the rights of patients should be carefully considered. We have
looked at evidence from California. In our opinion, what we saw was, in 1975,
they passed their caps. It was not until 1988, when Proposition 103 was
passed, that physicians were able to see any rollback or reduction or
containment in their medical malpractice premiums.
More recently, states like Missouri, Minnesota, Nevada, and Ohio
have passed their caps, and physicians have yet to see any reduction or
containment in their medical malpractice premiums, nor is any reduction or
containment in these premiums in sight.
Having said that, I would like Dr. Ciechanowski to say a few words
on this issue.
G E O R G E C I E C H A N O W S K I, M.D.: Thank you very much.
Madam Chair, Mr. Chairman, honorable Committee members, I
am a practicing pulmonologist. I also do critical care. Iíve been in practice
since 1986 in Hudson County. I am here, really, to tell you that we do not see
capitation as a solution, as an immediate help, for physicians. Physiciansí
practices -- I see my colleagues on a daily basis in the hospital. They are really
drowning, in this day and age, due to the high, escalating costs of maintaining
a practice, an independent practice, outside of the hospital, and not being an
We really need a life raft in order to support ourselves and to
continue to help our patients. This is really about saving individual practices
and helping patients in the interim.
MR. SAHAI: A lot of physician practices are drowning, according
to Dr. Ciechanowski. Theyíre looking for life rafts. These political debates on
caps and reform have not presented any viable solution that benefits physicians
or patients. What weíve heard from Majority Leader Roberts -- and let me
loosely call it the subsidy fund -- gives us some hope that physicians can benefit
without compromising patient rights in the near future.
I would like to draw your attention to an OB/GYN from Hudson
County, New Jersey. Iíve had the privilege of knowing Dr. Delores Lao for over
two years. As I enter her office, I find my demeanor changing to a more softer,
more comfortable one. Her office has been a very kind office, a very sweet
office. Dr. Lao, as she tells me, has been in practice for about 24 years. It was
not until the last five years that she first experienced a malpractice suit, which
was ultimately dropped. And it was not until recently she has a case open.
There is no evidence of any malpractice whatsoever.
Her premiums last year were approximately $45,000. Being close
to retirement, that was at the height of her budget. This year the premiums,
from $45,000, were escalated to $130,000. The reason I would like to draw
your attention to Dr. Lao is because she has decided -- I believe, and I can
speak for her, with quite a bit of pain and suffering -- to close her doors to her
patients. I believe this is not just Dr. Laoís loss. Her patients who she cared
for, for a number of years, lose a lot more. They lose a caring physician and the
community loses her as well.
A life raft is what weíre seeking, and the subsidy package offers
some hope. Dr. Lao, like other physicians in the last 10 years, have experienced
reimbursements cut in the neighborhood of 30 to 50 percent. In the same time
period, practice costs and inflation have escalated 30 to 50 percent. Twelve
years ago, an OB/GYN was reimbursed approximately $4,000 for nine months
of care and delivery of a child. Today, that $4,000 is down to approximately,
on average, $2,000. And if you factor in the ravages of inflation on top of that,
there isnít a whole lot left. And on the heels of all this, we have huge premium
escalations in medical malpractice insurance, which are forcing physicians to
close their doors, and again, compromising patient care.
And on that disappointing note, I would like to hand the
microphone over to Dr. Lao.
D E L O R E S L A O, M.D.: Hi. Iím Dr. Lao. Iím an OB/GYN practicing
in Hudson County. Iíve been in practice for 24 years. Last month I had to
close my office because I cannot afford my malpractice insurance, which goes
from $45,000 to $130,000. I had a case, five years ago, which was dropped,
and recently I have an open case, but it has not been settled yet. With this
increasing malpractice, a lot of my colleagues are suffering from pain -- and
because they could not afford the malpractice. And soon, more OB/GYNs are
going to be dropping out of practice because of the escalating malpractice
MR. SAHAI: Thank you.
I would like to also try and draw the attention of the Legislature to
the overall picture. As I pointed out earlier -- that reimbursements have fallen
almost up to 50 percent or more in the last 10 years. And the question one
asks, had reimbursements remained steady would there be a crisis today, or
would there be a crisis in the magnitude that we have today?
As we turn our attention to the reimbursements, we seek the support
of the Legislature and other groups to support patient-friendly physicians that
we represent in seeking solutions that will benefit physicians and will not
compromise the rights of patients.
The minimum wage-- May I ask what the minimum wage is these
days, if someone can please volunteer, approximately?
ASSEMBLYMAN BATEMAN: Seven-forty-five, 7.50.
ASSEMBLYMAN McKEON: The Democrats want to move it to
MR. SAHAI: Seven dollars. Okay. All right.
ASSEMBLYWOMAN WEINBERG: I donít believe itís that high,
but-- Itís $5.35, I think.
MR. SAHAI: What is half of $7? Three dollars and fifty cents.
Well, I got to tell you something. Almost every physician has been working at
50 percent of the minimum wage, and I use this as an analogy. And with this
rise in malpractice premiums, there is no room to absorb that. And itís time to
focus our attention on the larger picture of reimbursements.
And with that, Iíd like to hand the floor to Dr. Ciechanowski.
DR. CIECHANOWSKI: I would like to reiterate what Rooney just
said. Physicians are really caught at this present time between a rock and a hard
place. The declining reimbursements that we are facing and the escalating costs
that we are facing, at the other end, has really provided a very big, short
squeeze, and many physicians really cannot maintain their practices in this type
of an environment. If we are seeking to lessen the burden of malpractice, this
is not the way to do it. By making physicians work harder, longer hours, seeing
more patients per day will not lessen the episodes of malpractice. It will, rather,
escalate them. I think that we need to be reimbursed at a fair level in order for
us to spend more time with our patients and provide them the quality care that
MR. SAHAI: Dr. Juliano, would you like to offer any comments?
A. B. J U L I A N O, M.D.: Well, I agree with what you and Dr.
ASSEMBLYWOMAN WEINBERG: Excuse me, Dr. Juliano, you
must use a microphone. (referring to PA microphone)
DR. JULIANO: Well, I agree with what you said, Rooney, and
what Dr. George has said. I have nothing else to add at this point.
MR. SAHAI: Okay.
Thank you for listening.
ASSEMBLYWOMAN WEINBERG: Assemblyman Conaway.
ASSEMBLYMAN CONAWAY: Yes, Mr. Sahai. Youíre the
Executive Director of Physicians and Patients for Quality Care. How old is your
MR. SAHAI: Your question is how is the organization--
ASSEMBLYMAN CONAWAY: How old is your organization?
When was it formed, and do you collect dues from members? How many
members do you have?
MR. SAHAI: The organization was founded in July of 2002. The
organization, currently, has the support of approximately 3,000 physicians
throughout New Jersey. We are very strong in Hudson County. This
organization continues to grow every week.
ASSEMBLYMAN CONAWAY: What is your dues structure? They
pay you a salary, I guess.
MR. SAHAI: There is a dues structure, sir.
ASSEMBLYMAN CONAWAY: Now, you mentioned that you did
some analysis of, I guess, caps or something like that. I mean, are you an
actuary yourself, or whatís your professional background, if you donít mind my
MR. SAHAI: Iím a manager of physician practices with an
insurance background, and I donít believe I need an actuarial background or an
underwriting background to analyze the situation. I have analyzed the situation
together with a bunch of physicians. From among other perspectives, from a
commonsense perspective, we have tried to be analytical. We have looked at
a lot of research from actuaries and other research that most folks here have
been privy to. And the conclusions were drawn from those researches.
ASSEMBLYMAN CONAWAY: Madam Chair, if I may.
I have looked at-- I mean, Iím not an actuary myself, but people
who bring testimony and who are experts, I think, would disagree that caps
wonít provide any benefit.
You mentioned that, and I agree with you, that caps wonít provide
any immediate benefit. No one has asked that, but what do you think of this
statement? Many of us feel that without underlying reform weíre not going to
achieve long-term stability in the marketplace for medical malpractice insurance,
and that we physicians will always be subject to these forces which drive our
costs, costs that we canít recoup in terms of reimbursement, and that putting
money into a system that is fundamentally flawed is, one might argue, a waste
of money. Well, not a waste of money, because there will be some immediate
help for physicians, who otherwise would be out of business. But donít you
think that it is inappropriate for lawmakers to think about the long-term health
of the healthcare delivery system, to think 10 years down the road or more, to
bring the kind of fundamental structural reforms that will prevent this kind of
hearing from taking place in five or 10 years. What kind of reform do you think
we ought to do, other than just throwing money in a system that weíre not
prepared to change?
MR. SAHAI: Thank you.
Dr. Conaway, when we analyzed Californiaís situation, our analysis
has the perspective where these physicians need immediate relief, which,
unfortunately, has to be of a monetary nature. As we analyzed the California
situation, we have not been able to see any evidence of rate reduction or
containment. Up until Proposition 103 came to pass in 1988, states like
Missouri, Minnesota, Nevada, and Ohio have all passed caps, and we have not
yet seen any indication of rate reduction or premium containment. Nor is any
expert out there making a prediction or call on that.
ASSEMBLYMAN CONAWAY: Well, thatís not quite true.
Because there are experts that are saying that caps will bring relief. And as I said
to you, and I think thereís general agreement, that caps wonít bring any
immediate relief. So when you mentioned these states who have recently passed
their caps and you tell me thereís no rate reduction -- of course thereís no rate
reduction. There are a lot of cases in the pipeline that are still going to continue
to drive those insurance rates in those states for some time to come. Many
people say three to five years. And so there is a time line involved here. And so,
for the future, because people are going to come up here and talk about the caps
that arenít working in these states, I just want, for the record, for everyone in
here to know that, of course, those caps are not going to bring immediate relief
on the premiums, and that we are talking about a time line that is three to five
years or, perhaps, more. So, perhaps, we wonít hear that with every witness that
comes up opposing caps.
ASSEMBLYWOMAN WEINBERG: Any other questions here?
Go ahead, Mr. Sahai.
MR. SAHAI: I just want to put in my last word on that, please.
There are other measures--
Dr. Ciechanowski, would you like to point them out.
DR. CIECHANOWSKI: I think your comments are very well
taken, Dr. Conaway. However, as a fellow colleague of yours, I think we look
across the state and we see physicians whose practices are dying today. Waiting
three to five years is not an option for those physicians out there. I think while
we seek the long-term solution, I think we really do need a life raft or a stop-gap
measure in the immediate future for those practices and those physicians and
those patients today.
ASSEMBLYMAN CONAWAY: I agree.
DR. CIECHANOWSKI: Thank you.
MR. SAHAI: Thank you.
ASSEMBLYWOMAN WEINBERG: Assemblywoman Vandervalk.
ASSEMBLYWOMAN VANDERVALK: Thank you.
Iíve listened closely to what you said, and you say we need life rafts
and stop-gap measures, but you donít say what they are. The only thing you
mentioned in a positive way, as to what you would like, would be increased
reimbursements, which is something we really canít deal with at this table,
certainly not today. So, if you could spell out -- is there something more
specific you could say as to what youíre looking for in the way of a life raft?
MR. SAHAI: Sure. For the first time in 18 months, Majority
Leader Robertsís proposal of -- if I can loosely call it a subsidy fund -- offers
hope. It offers hope because it is a simple plan. It offers hope because the
benefit appears to be immediate. What we have heard is, if a physician qualifies
for relief based on the percentage increase in premium costs, this fund intends
to refund to the physician approximately 50 percent of the increase. That could
make the difference between staying in practice or closing the door. And that
would be my answer.
ASSEMBLYWOMAN VANDERVALK: In Dr. Laoís case, I donít
think that would be sufficient to-- If it was 50 percent of the increase, we would
be talking about $45,000 or $50,000. I donít know if that would be enough to
keep her in business.
MR. SAHAI: We donít know that. However, itís a step closer to
keeping physicians, like herself, in business. The reason we support it is because
it looks like an immediate benefit to physicians, which comes at no cost to the
patients or anyone else.
ASSEMBLYMAN COHEN: Thank you very much. Thank each
of you for coming down.
MR. SAHAI: Thank you.
DR. JULIANO: Thank you.
DR. CIECHANOWSKI: Thank you, Mr. Chair.
ASSEMBLYWOMAN WEINBERG: The next witness is Catherine
R O N A L D G O L D F A D E N, ESQ.: Good morning, ladies and
gentlemen. My name is Ronald Goldfaden, and I want to thank you for inviting
us to speak today. I am a personal injury attorney specializing in medical
malpractice, and Iím proud to represent the family of Richard Fulton, along
with his wife, Catherine Fulton, who will be sitting next to me and will be
speaking to you in a few moments.
Iím here today to, hopefully, put a human face on some of the
victims of medical malpractice, so that you can see that some of the things that
you hear in the press about victims looking for a jackpot or a payday is not
always what we actually see -- those that handle medical malpractice claims.
Iím here today to tell you about the wrongful death of a beloved member of our
community, a treasured husband and father of two children, a man in his late
forties who had everything to live for. His life was destroyed by a total disregard
of hospital protocol and procedure, as well as an act of astonishing negligence
by a doctor.
One year ago, Richard Fulton was 49 years old when he felt a lump
on his neck. He was diagnosed as having a Burkittís lymphoma, and he was
started on chemotherapy. He was to receive four medications; three of them
were to be infused intravenously into his veins, and one of them was to be put
into his spine intrathecally. On July 25, 2002, eight hours after it had been
administered, the hospital realized that they had put the wrong medication into
his spine. When they checked the medical literature, they realized that this had
only been reported to have happened 14 times ever before, and that in each
instance the person died.
When they told Mr. Fulton of his mistake, they told him that he
was certain to die. Over the next day, he called in his 12-year-old son, Ryan,
and he told him to take care of mommy. He called in his 4-year-old daughter,
Katie, and hugged and kissed her goodbye for the last time. And over the next
four days, he died an excruciatingly painful death with ascending paralysis up
his legs, to his waist, to his chest. He lost his hearing, and he lost his gag reflex,
and he was in such pain that they started a morphine drip until he died four
The only thing that is more horrible than the actual malpractice, or
the death that Mr. Fulton sustained, is the fact that this was so easily
preventable. The medication that Mr. Fulton received is called Vincristine. And
as you can see (indicating bottle), the bottle has a clear warning on the outside
of the package which indicates "fatal if given intrathecally. For intravenous use
only." In addition to that, the medication comes with a whole host of
additional package inserts and warnings. The package insert, also, has a
warning that this medication should be administered by individuals experienced
in the administration of Vincristine, it is extremely important that the
intravenous needle be properly positioned, and that it will be fatal if given
In addition, there are additional warnings on the package inserts.
And as you can see (indicating bottle), there is, actually, on the bottle itself,
another warning that indicates that this is for intravenous use only, and that this
is a potent drug that is potentially fatal if given in the wrong administration. In
addition to all of those warnings, there is also a warning that is supposed to go
directly on the syringe itself, which, as you can see again, gives the clear warning
to the doctors. And finally, and almost unbelievable with all of these warnings,
the medication actually comes with plastic baggy overwraps where the syringe
goes inside this overwrap. And as you can see, there is a clear warning that says,
"Donít remove this syringe until the moment of injection. Fatal if given
intrathecally." The medications that Mr. Fulton received, which are indicated
here, also clearly indicated that this medication was not for intrathecal use.
Let me just tell you, very briefly, about the kind of man that
Richard Fulton was. In addition to his wife and two children, he had worked
for the last 15 years as the Director of Special Education Services for
Monmouth and Ocean County Services. He was the director responsible for
providing all special ed services to nonpublic schools. These included things
such as English as a Second Language, home instruction, compensatory
education. He had programs for pregnant teens, prior to school and after
school. He was a Eucharistic minister and religious education teacher at his
church. He formerly was the principal at Mt. Carmel Guild School in Jersey
City, and before that, the director of the Holy Rosary Day Care Center.
Iíd just, rather than speak about him any further myself, want you
to hear from a nun who worked with Richard and who was with him the day
before he died.
(runs program on Richard Fulton)
Ladies and gentlemen, I know you have a difficult task. Please
donít forget the victims of legitimate medical malpractice when you undertake
your difficult responsibility.
Iíd like, at this time, to introduce Catherine Fulton, who has a few
remarks that she would like to make, very briefly.
C A T H E R I N E F U L T O N: Good morning.
I am here today to speak to your about how my husband became
a victim of malpractice and how it has affected our family and me. I call those
last days of Richardís lifethe nightmare weekend. Nine months later, our 12-yearold
son, Ryan, and 4-year-old daughter, Katie, and me are still living in this
These months have been very difficult for Ryan. I have been told
the most devastating and traumatic time for a child to lose a parent is that of a
12-year-old boy. Not only is Ryan dealing with adolescence, he is grieving the
loss of his dad. To make things even more devastating, he is extremely angry
with the doctor for being so careless as to not read the label of his dadís
chemotherapy. It is mind-boggling to him, and for that matter beyond anyoneís
comprehension, why this tragedy ever occurred in the first place. Ryan is taking
out his anger on Katie and me. Heís being treated for depression and is on
Katie, on the other hand, letís her thoughts and feeling out all the
time. She is constantly saying that she wants to see daddyís real eyes, not the
ones in the picture. She tells me that daddy died because he got the wrong
chemo and that the doctor doesnít know how to read. Katie doesnít sleep
through the night anymore. Like clockwork, she comes into my room each night
around 2:00 in the morning. Katie is very clingy and tells me numerous times
a day that she loves me.
The childrenís psychologist tells me they are both afraid that I am
going to leave them. They are both expressing the same fear in different ways.
For Ryan, his anger is a way of saying, "Why bother loving mommy, because
sheís going to leave, too, just like daddy did." Katie feels, if she showers me
with affection and makes sure Iím there at 2:00 in the morning, I wonít leave
her. I am concerned about the long-term psychological effects this tragedy will
have on our children.
My husband paid the ultimate price of medical malpractice. The
absurdity of this tragedy cries out for justice. Arbitrarily capping the amount of
damages our family can recover would be monstrous. How do I tell our
children their government has put a price tag on their daddyís life because some
medical malpractice lawsuits are considered frivolous? How do I tell them that
we might not be able to live in our house anymore? How do I explain to them
that the country that comes to the aid of the world is turning their back on
MR. GOLDFADEN: Thank you very much.
ASSEMBLYWOMAN WEINBERG: I thank you, Mrs. Fulton.
Are there any questions? (no response)
Thank you both for coming forth this morning.
ASSEMBLYMAN CONAWAY: Cochairpersons, I want to raise a
point of order, please, about these proceedings going forward. Now, my
understanding from the remark relayed from the Majority Leader and from our
own discussions -- that we were dealing with the specific aspects of this bill as
relates to whether or not we were going to have a subsidy to deal with the
medical malpractice premium crisis that physicians face. I would think,
accordingly, that the testimony that we hear today should be directed toward
that end. And so Iím just going forward. Iíd like to know whether or not our
discussions are going to be limited to the question of the subsidy or not?
ASSEMBLYWOMAN WEINBERG: I think I explained at the
outset that that was, definitely, what was before us today, although we would
not be able to take any official action; that we were going to be giving some
latitude to people to go beyond that subject in testimony. But we would like to
hear a concentration on the issue of the direct medical malpractice premium
subsidy. That would be helpful to this Committee, but people will be free to go
beyond that subject.
ASSEMBLYMAN COHEN: Dr. Delores Williams. Dr. Delores
Williams. Okay, fine.
R A Y M O N D E. C A N T O R: Good morning, and thanks for allowing
us to be here. My name is Ray Cantor. I am with The Medical Society of New
Jersey, and with me is Dr. Delores Williams. I have a few things I would like
to say from the Medical Society, specifically on the subsidy issue. But Dr.
Williams has a patient who is in labor and she has to leave soon, so Iím going
to let her talk first and then I--
ASSEMBLYWOMAN WEINBERG: As soon as I heard about the
patient in labor, we moved her up on the list.
D E L O R E S W I L L I A M S, M.D.: Okay, thank you.
Yes. My name is Dr. Delores Williams, and Iím an
obstetrician/gynecologist in private practice in the County of Mercer, New
Jersey, in Trenton. I have been in this area since 1989. I specifically came here
today because I know that the subsidy issue, while it may actually alleviate
some short-term suffering on the part of physicians, will not do anything, really,
in the short or the long run.
At the end of last year, it became very clear to me that the liability
crisis had put me out of business. I elected, in December of last year, to stop
practicing obstetrics. At the time I decided to stop, I had patients due into July,
and I paid my malpractice premium so that I wouldnít have to abandoned any
of my patients. Itís very clear to me that this particular environment will not
allow me to stay in practice, and again, many of the doctors in my department --
about five so far -- have also elected to stop delivering babies.
I think the issue of the subsidy, while good in intentions, certainly
doesnít offer me any hope in the short or the long run. I think without effective
tort reform, even in the long run, there would be no hope for many of us staying
in practice, especially one- and two-person and three-person groups. I only
deliver seven to 10 deliveries per month. And I figured out, in order for me to
afford these huge premiums, Iíd have to double or triple my volume, resulting
in loss of quality care to my patients and also loss of quality of life for myself,
and so I didnít have any other choice except to stop the obstetrical portion of
ASSEMBLYMAN COHEN: Assemblyman Green.
ASSEMBLYMAN GREEN: Initially, what type of premiums were
DR. WILLIAMS: Well, originally, before this so-called crisis here,
I was paying about $30,000 a year. And my premium then escalated to
$50,000 a year. At this point, if I had not dropped obstetrics, I would be facing
at least -- I was told the good-driver discount is about 72,000. Because I deliver
seven to 10 babies a month, in order for me to come up with that kind of
money, Iíd have to double, and maybe triple, the volume. And I couldnít do
that. Also, my problem also is, as insurance companies have gone out of
For instance, when I made a decision to stop practicing obstetrics,
I had FICO insurance at that time. The actual problem, that weíre not really
dealing with, is the stability of the insurance industry. I received a certified
letter from the State of New Jersey that -- any cases I have during my FICO
tenure -- I may have personal liability, because the statue of limitations is 20
years for delivering a baby in New Jersey, which means FICO is now out of
business. Any cases would be referred to the State Guarantee Fund, which has
a limit of 300,000. Therefore, I have been already notified that I may have
personal exposure for any case resulting from those FICO years that settles in
excess of 300,000. So, again, there are some tremendous problems facing
doctors that weíre not even beginning to address here.
ASSEMBLYMAN GREEN: My next question is that, have there
been any claims against you in terms of malpractice?
DR. WILLIAMS: Actually, there are two claims that Iíve been
named in that I donít know the patients. In one claim, thereís one line with my
name on the chart where I examined the patient for a nurse/midwife. I have
never met the patient. And the other claim is a patient Iíve never met, but my
previous partner was involved in her care. So, yes, those claims count against
physicians. Even though you are eventually dropped, your insurance company
incurs an expense to "defend you," whether you have anything to do with the
case or not. So, for me, the decision was a very complex decision. It was based
on possibly losing my home, my assets, my ability to fund my childrenís college
tuition, and based on this liability crisis -- the statute of limitations at 20 years,
insurance companies out of business, 17 more years before I can rest assured
that there is no FICO claim that I may be personally liable for.
The other issue is just, physically, being able to afford the liability
insurance. We were already sweating every month to pay for financing the
liability insurance premium over 10 months. And every month, with the
decreasing insurance reimbursements, there were times I did take my college
savings for my children to pay my liability payments. So weíre already
struggling to pay liability insurance.
ASSEMBLYMAN GREEN: Listening to your testimony, the thing
thatís very frightening is that, if Iím listening to you correctly, even if you go out
of business and you have no income, you and your family are still going to be
exposed to the fact that over the last 20 years you have basically brought
children into this world. Yet still, thereís no insurance coverage. Thereís
nothing to basically protect you and your family. Is this what youíre saying to
DR. WILLIAMS: Iím saying exactly that. As a matter of fact, one
of the physicians who stopped delivering babies in my department, the end of
last year, he calculated his life expectancy, and he says, "I want to outlive my
risks." We do face 20 years of further risk from the last baby we deliver. And
again, this wasnít a big issue before liability insurance companies were going
bankrupt and to State receivership. But Iíve received a certified letter from the
State of New Jersey. All of us who had FICO insurance received that letter
notifying us that we may have a personal exposure if any case during those
FICO years were to settle for more than 300,000. And as you know, 300,000
is a pittance in terms of the kinds of awards that are being awarded in the
majority of "bad baby cases." So, youíre right, even if I go bankrupt today, I
still have 20 years of exposure from the last baby I deliver.
ASSEMBLYMAN GREEN: Thank you very much.
This question to the Chair. As we sit here, we listen to all the
different testimonies. Itís obvious this thing is getting all kinds of twists. Iím
hoping that a testimony of this magnitude should shed some light on the fact
that no one, including a doctor or a person in life, should not be protected,
especially when they feel they have insurance and the insurance company says
theyíre either belly up or go out of business, and just leave the person hanging
out there -- like this can happen to her. So I just want to hope that, during the
course of our discussion of these types of issues, that we can talk about further
ASSEMBLYWOMAN WEINBERG: Assemblyman Green and Dr.
Williams, let me point out that some of the very basic problems that you raised
are addressed in our bill. The statute of limitations is lowered. There is a
method to get out of the types of lawsuits where, you said, your name was just
on the stationery, but you didnít actually see the patient. There is a method in
the bill so that you can get extricated from such a lawsuit. So although, again,
the subject is about premium assistance, if this legislation passes, those issues
that you raised would be lessened somewhat. And in addition, you would
receive the direct premium relief.
DR. WILLIAMS: However, that doesnít really address what
happens to you after an insurance company loses its license in your state. In
other words, if the insurance company goes bankrupt, you still have some risks.
And therefore, I heard one young lady ask a question, what do we think some,
possibly, interim measures could be? Many physicians in the state, weíve
discussed the fact that, at this point, this is such a severe crisis, many of us are
having to close our doors. I think the Legislature and certainly doctors, like
myself, are thinking that there should be an alternative in the state to liability
insurance, just as the state of Florida has an alternative to liability insurance.
I donít see any "short-term" solutions that would help many of us stay in
business. However, I think if physicians in the State of New Jersey were allowed
to post a bond in lieu of liability insurance, as already exists in the state of
Florida, that would keep some specialists from going out of business.
ASSEMBLYMAN COHEN: No questions.
Thank you, Doctor. I know youíve got to go to handle a patient,
which is more important at this point.
DR. WILLIAMS: Thank you very much.
MR. CANTOR: Thank you, Doctor.
Can I do my testimony?
ASSEMBLYMAN COHEN: We took Dr. Williams first because
she has to handle a patient, so--
MR. CANTOR: Thatís fair.
ASSEMBLYMAN COHEN: The Administrative Office of the
Courts, unnamed but, yet, present.
ASSEMBLYWOMAN VANDERVALK: I donít know if I should
say Madam Chair or--
ASSEMBLYWOMAN WEINBERG: Whichever you prefer.
ASSEMBLYMAN COHEN: Weíre doing a gender neutral.
ASSEMBLYWOMAN VANDERVALK: Can I just ask if thereís
anybody here who can give us a follow-up on posting a bond. I mean, that
would have a cost to it as well. You donít get that -- you have to pay for that
coverage as well.
ASSEMBLYMAN CONAWAY: And itís not enough, the bond by
ASSEMBLYWOMAN VANDERVALK: So I donít know what that
ASSEMBLYMAN CONAWAY: Well, the bond issue is-- I mean,
$500,000 is not enough protection for these "bad baby cases." I wish there was
another name for it. But that is slim -- thatís a fig leaf protection, considering
the environment that weíre in now.
ASSEMBLYMAN COHEN: Thank you.
If you could state your names.
D A N I E L P H I L L I P S, ESQ.: Iím Dan Phillips, from the
Administrative Office of the Courts, and I have with me Kevin Wolfe, who is
an attorney with the Civil Division in the Administrative Office of the Courts.
Weíre appearing today at the request of the Committee to explain a couple of
tables that we have put together, at the request of Senator Vitale, for the Senate
Health and Human Services Committee, regarding jury verdicts and some caseflow
trends on medical malpractice cases. And we have no position at this time
on any of the bills and specific bills, but weíre taking the opportunity to explain
the table again at the request of the Committee.
We provided two tables. One is a table showing a six-year trend --
itís one page -- on the filings and terminations of medical malpractice cases in
the courts. And the other one is the detail on the terminations, the cases that
were terminated by juries, and also showing the jury award amounts. Weíll
explain both tables.
The first table, the one-page table, thatís entitled New Jersey
Medical Malpractice filing/termination data. Again, itís a six-year trend. First,
it shows the number of cases filed in 2002. There were 1,656 cases filed with
the courts for medical malpractice. Thereís also, generally, about 1,500 cases
pending in the courts. So, for example, at this time at the end of March, there
were about 3,200 cases pending in the courts, medical malpractice.
The terminations that you see, with the detail of the method of
disposition, they donít necessarily relate to the cases filed in those years. The
medical malpractice cases, the average case, takes about two years to be
terminated in the courts, and thatís compared to an average civil case, all civil
cases, which is about 11 months. Obviously, the medical malpractice cases are
more complex and take additional time. So when you look at the terminations,
the terminations are not the terminations of the cases that were filed in 2002.
They were filed in some earlier year. So you should look at the terminations
separately from the filings.
As far as the terminations go, in 2002, there were 1,700
terminations. About 43 percent of them were resolved by settlement, about 37
percent were dismissed. And we donít always know the reason for dismissal.
Some of those may be procedural, meaning they were involuntary, and some of
them may be voluntary, meaning the parties may have settled or decided to
dismiss the case and file the stipulation of dismissal with the court. In those
cases, we donít know the reason for the request for dismissal by the parties. We
just get a stipulation of dismissal, and the court dismisses.
Twelve percent of them went to trial; 200 were trial by juries, and
five were trial without juries. And thatís what Iím going to have Kevin explain
the detail on, the-- The other table is the detail of the 205 cases.
K E V I N W O L F E, ESQ.: What weíre talking about on the second table
is the cases that were tried to completion in the year 2002. Thatís the calendar
year. What we did was, we used our automated computer case management
system to generate the cases that went to trial in 2002, and then we asked our
staff in each one of the 21 counties to go in and physically look at the file to
give us the information as to how that case was disposed of.
And youíll see that approximately three out of four cases were no
cause. In other words, it was a verdict for the physician; and one-quarter of the
cases were a verdict -- a jury award on behalf of the plaintiff. We have run the
numbers of the approximate 56, 57 cases that resulted in a jury award. The
total amount came to 59,423,000, for an average number of 1.1 million. And
the median number was, I believe, $350,000. That is on Page 7 of the table.
We also have -- youíll see that there is a column marked additur
and remittitur. That column was used for comments, but it was also -- notice
that cases where there was a jury verdict, and then there was a decision by the
judge on a motion for a new trial -- to change the amount that the jury awarded
in that particular case, because of the evidence in the case.
MR. PHILLIPS: Weíve given, with that table, an explanation of
some of the terms that are used on the tables: no cause, additur/remittitur, and
high/low. If you need further explanation, Kevin can explain what those terms
Iíd be happy to answer any questions.
ASSEMBLYWOMAN WEINBERG: Just before you do, let me
ask, would you please go over again the three cumulative figures on the bottom
of Page 7, and slowly explain what each of those figures -- starting with the 59
million -- mean?
MR. WOLFE: The $59 million was simply the column -- that was
the total in that column of jury award amounts. So that column was added up,
and it amounts to $59 million. We then ran the average number for the cases
that went to jury award, and that came to 1.1 million. And then, finally, we ran
the median, $350,000 -- half were above that, half were below that $350,000.
ASSEMBLYWOMAN WEINBERG: Assemblyman DíAmato.
ASSEMBLYMAN DíAMATO: Thank you, Madam Chairwoman.
ASSEMBLYWOMAN VANDERVALK: We donít have that page,
ASSEMBLYWOMAN WEINBERG: Itís the very last page. Oh,
all right. Sheila will try to get more. Apparently, we gave you an amended
ASSEMBLYMAN DíAMATO: May I ask a couple questions?
May I take you to the first page of the chart there. Now, if you
look at the year 2002, you have there 732 cases settled. When you mean
settled, you mean a payment was made by the defendant, through the
defendantís carrier to the plaintiff, correct?
MR. WOLFE: That indicates that -- the communication to the
courts was that that case was settled, and we assume it was settled for a
ASSEMBLYMAN DíAMATO: Now, letís go to the category where
MR. WOLFE: Correct.
ASSEMBLYMAN DíAMATO: How many of those dismissals were
voluntary? Do we know?
MR. WOLFE: We do not have -- we canít look behind that
number. So that category could involve involuntary dismissals because of some
procedural problem, or it could mean that the case was settled and, simply, the
attorneys, rather than communicating to the court that the case was settled,
simply communicate to the court that they want the case dismissed.
ASSEMBLYMAN DíAMATO: Now, if the settlement was sealed,
then in all probability the court would not know that money has, in fact, been
paid, because that was negotiated between the parties. That is, thereíll be no
disclosure to anyone about the fact that a dollar settlement was made, correct?
MR. WOLFE: Youíre going beyond my expertise. I donít want to
ASSEMBLYMAN DíAMATO: Okay. Well, I can tell you, thatís
the case. All right.
Now, letís talk about this for a minute here, because of the 638
cases, theoretically there could have been a payment made by the carrier to the
MR. WOLFE: Thatís correct. As I indicated, if the case was settled
but it was communicated to us as a dismissal--
ASSEMBLYMAN DíAMATO: Then letís assume thatís the case.
So if we add those two figures together, the 732 and the 638, working on the
premise that settlement was made, there were settlements in 1,370 cases of the
1,656 that were filed.
MR. WOLFE: Based upon the way youíve characterized it, yes.
ASSEMBLYMAN DíAMATO: All right. Thank you.
MR. PHILLIPS: Itís not of the file cases. Itís of the terminations
for that year.
ASSEMBLYMAN DíAMATO: Okay.
ASSEMBLYWOMAN WEINBERG: Assemblyman Conaway.
ASSEMBLYMAN CONAWAY: Just in carrying on with what
Assemblyman DíAmato said, your data is incomplete in that there are sealed
settlements -- figures that are probably not contained here that are likely to
make these numbers even worse than they are. Isnít that right? Isnít that a fair
MR. WOLFE: The numbers that weíre giving you are simply
information that was communicated to the court and put into the courts ACMS
system. If, in fact, there are settlements outside of the court system, obviously
we would not have that information.
ASSEMBLYMAN CONAWAY: Now, just so that I understand it--
Now, the global number is, whatever it was--
MR. WOLFE: Approximately 1,700 cases filed a year.
ASSEMBLYMAN CONAWAY: Iím talking about the cash. Youíre
talking about a million dollars spread across all the cases. Weíre at a million
dollars that insurance companies are paying out to clients on average. Is that
MR. WOLFE: These are the jury verdicts.
MR. PHILLIPS: These are jury verdicts only, not settlements.
MR. WOLFE: The second table is jury verdicts.
ASSEMBLYMAN CONAWAY: Those are jury verdicts.
MR. WOLFE: Those are jury verdicts.
ASSEMBLYMAN CONAWAY: And there has been a lot of
testimony here, and a lot of dispute and gnashing of teeth over the statements
that we have heard in this committee room, from the insurance industry, who
has said that they are seeing increases in the amounts that theyíre paying. And
they threw a number out of a million dollars of these -- in the multimillion
dollar verdicts. It seems to me, now, what you presented to us today seems to
support rather than to refute what -- the testimony that we heard from insurance
executives. If Iím misunderstanding, please let me know. But this average
number of a million strikes me as very significant. I mean, if he has an answer,
Iíd love to hear it.
ASSEMBLYWOMAN WEINBERG: Assemblyman DíAmato.
ASSEMBLYMAN DíAMATO: The point I was trying to make, and
I thought it was obvious, and once again, I should have thought that, is that in
the year 2002 there was a disposition of 1,656 cases, as they went out of the
court system. And theoretically, there could have been a payment of 1,370
cases. So, I suggest, respectfully, that what this indicates, or should indicate to
us, is that there is a problem. That doctors, physicians are deviating from the
standard of care. Because why would the company pay on 85 percent of the
cases that were disposed of. Thatís the point I was trying to make.
ASSEMBLYMAN CONAWAY: Well, I have an answer.
ASSEMBLYWOMAN WEINBERG: Well, apparently, youíre able
to answer each otherís questions, but we do have--
ASSEMBLYMAN CONAWAY: The reason these settlements get
paid is because of the fear of going in the court system and having to deal with
these very high jury awards, and so you get a settlement. And itís one of the
underlying -- the difficult things to get your fingers around here, because of the
fear of exposing yourself in that court-- You know, you get out and wipe the
sweat off your brow that youíre getting away with a million bucks, if you settle
for the maximum amount of policy, which happens very often. I think there is
a lot of data there thatís tough for us to get at. Thatís my answer.
ASSEMBLYWOMAN WEINBERG: I would like to put a question
to you. Is there a possibility of actually getting the information on settlements
in terms of dollar figures? Is there any way that that can be gleaned?
MR. PHILLIPS: Thatís not reported to the courts, and often, they
are also, as Assemblyman DíAmato said, they are sealed. So that information
is not recorded, and itís confidential among the parties. We do not have it in
our system. We donít record any settlement information, only that there was
a settlement and the case was disposed.
Iíd also like to clarify that we give you two measures of central
tenancy, here, of the jury verdicts where there was a monetary award. We give
you the mean and we also give you the median. The mean, obviously is affected
by the much higher awards. There are some very high award in here, which
affects the mean. The median, for your purposes, may be a better measure of
the central tenancy, which is $350,000, which is pretty much the middle-of-theroad
award. So you have to consider which average you want to use for your
discussions, whether you want to use the mean, which is affected by excessive
highs and lows, or the median, which is $350,000.
But to answer your question, we wouldnít have the information on
settlements. Itís just not reported.
MR. WOLFE: And just one further nuance. That $59 million
includes -- is the jury award. That is not necessarily what was ultimately paid
out, because there is-- Youíll see in the statistics some cases that were actually
reduced by the court.
MR. PHILLIPS: Or that there was a high-low agreement, which
means the attorneys agreed to hedge their liability by agreeing to arrange the
award before it goes to the jury.
ASSEMBLYWOMAN WEINBERG: Are there any other questions?
Thank you for putting this information together.
MR. WOLFE: Thank you.
MR. PHILLIPS: If we could be of any other help, please let us
ASSEMBLYWOMAN WEINBERG: We have the consumer group
as a panel: Peter Guzzo from CCJ, Marilyn Askin from AARP, Dena Mottola
from PIRG, Paul Amitrani from the Hemophelia Association, and Dennis
Welcome all of you.
P E T E R G U Z Z O: Yes. Good morning, Madam Chair, members of the
Committee. I was just informed by the hearing person -- what weíll have to do
is play musical chairs, because thereís no microphone working in the back. So
when we finish, if you would allow us, weíll bring the two gentlemen in the back
Iím Peter Guzzo, Executive Director of Consumers for Civil Justice.
And what you see before you this morning, members of the Committee, is the
broadest coalition of consumer, patient advocates, victim advocates, healthcare
advocates, senior advocate organizations.
I have, to my right, Marilyn Askin, President of the New Jersey
AARP, which represents 1.3 million seniors; Dena Mottola, from New Jersey
PIRG; Paul Amitrani, from the New Jersey Hemophilia Association; and Dennis
Donnelly, who is our counsel for the consumer issues. Iím also speaking on
behalf of the Health Professionals and Allied Employees this morning, and
So I think you see before you an array of consumer organizations
that have a common message here. And the common message is, if ever there
was a cause for consumers and victim advocates to draw the line in the sand,
medical-mal reform that penalizes the victims, the innocent victims of medical
malpractice, is it. No way in the world will any other consumer organizations
that you see before you today approve of victims being penalized by having
awards capped, especially after you see the horrendous pain that a family goes
through because an innocent victim goes into a hospital, trusting a facility, a
doctor and dies four days after he goes in -- and that life is going to be
trivialized at 250, 300, 400.
Before I hand over to Marilyn Askin, let me just mention a
statement that I was asked to read on behalf of the Health Professionals and
Allied Employees, which is a union of 9,000 nurses and healthcare workers.
ASSEMBLYWOMAN WEINBERG: Excuse me one moment,
Peter. We do have a lot of lengthy written testimony from your witnesses here.
MR. GUZZO: Right. This is one sentence.
ASSEMBLYWOMAN WEINBERG: So I am going to ask each of
you, if you could, to summarize rather than -- since youíve given us copies --
rather than go through a reading of all the testimony.
MR. GUZZO: Right. And this is just going to be one sentence
from the HPAE. "Health Professionals and Allied Employees believe that
doctors have chosen the wrong enemy, the wrong ally, and the wrong solution.
Patients are not the enemy, and limiting awards to patients who are victims of
malpractice is not the answer." And they support the subsidy as proposed by
Assemblyman Roberts, also.
And just one final comment. Throughout all these hearings for the
past year, this is like a wedding without a groom or a wedding without a bride.
Where is the insurance industry? That is who should be at this table. That is
who should be asked the questions of, and they should be the ones to have to
respond. Itís a sad day when doctors and patients and consumers are opposing
each other. We are common allies. It is the insurance industry that has much
to answer for.
And with that, Iíll hand it over to Marilyn Askin.
ASSEMBLYMAN CONAWAY: I have to make one comment.
ASSEMBLYWOMAN WEINBERG: Can I say no? (laughter)
ASSEMBLYMAN CONAWAY: Well--
We physicians are the only ones who by oath and by temperament
stand with patients every step of the way. And I canít sit here and have you say,
in public, that physicians are pitting themselves against their patients. Itís just
not true. And what we are trying to do is to come up with a solution that serves
everyone, to find a middle ground to make sure that, at the end of the day, that
we have a healthcare system that works for everybody -- if youíre a woman, that
you have an obstetrician to go to; if youíre traumatized on the road, thereís a
neurosurgeon or a trauma surgeon or an orthopedic surgeon to take care of you.
Weíre trying to balance the needs of the many, as opposed to the needs of the
few. Thatís what weíre trying to do. But to sit here and say that we physicians
donít stand with patients and walk with them every step of the way is absolutely
wrong, and it should not be said in public.
MR. GUZZO: Well, I commend you, Assemblyman, because you
are one of those physicians who is standing with patients and consumers.
ASSEMBLYWOMAN WEINBERG: Ms. Askin.
M A R I L Y N A S K I N: Chairwoman Weinberg, my name is Marilyn
Askin. Iím the New Jersey State President of AARP. We have 1.35 million
members in New Jersey. Iím sure some of you -- I know Assemblyman McKeon
is not yet a member, but heíll get there.
Majority Leader Roberts so eloquently articulated our concerns, and
Iíd love you to study his testimony on that, because it really does represent the
concerns of AARP. Why is AARP interested in this? Weíre interested because
most of our members, if they were a victim of medical error, would never have
a day in court whatsoever, because they donít suffer economic damages. The
only damages they suffer are noneconomic damages. And with the cost of
litigation these days, it would be very hard for them to find an advocate who
would be willing to put the up-front money involved and to vest so much energy
into a case in which there would be only noneconomic damages.
So that the caps proposed, any kind of caps proposed, in this
legislation are unreasonable, theyíre unacceptable, and theyíre unwarranted.
Because caps on noneconomic damages denigrate the great value that retirees
and others provide to our society, just because they are currently not earning
economic damages or significant income.
We had a press conference the other day and, Assemblywoman
Weinberg, one of your constituents came down to testify. You probably know
him. His name is Lou Schwartz (phonetic spelling).
ASSEMBLYWOMAN WEINBERG: I certainly do.
MS. ASKIN: Heís 90 years old.
ASSEMBLYWOMAN WEINBERG: Plus.
MS. ASKIN: Thatís true. Heís going to be 91 very soon. And he
has been retired since the age of 65. He retired as a plumber. Well, since í65,
his life has taken on such meaning, such advocacy. Heís been a councilman.
Heís on the SHIP program helping people get through the Medicare maze. Heís
on the Martin Luther King board. Heís on the Fair Housing Commission, and
Iím sure there are a host of other things. His attitude was, when he heard that
his life is only worth, maybe, 250,000 -- if he gets that, maybe 100,000, if there
is some egregious error -- really makes him feel that this trivializes the value of
And so that-- Caps on noneconomic damages could result in an
unequal legal and medical system where wealthy, wage-earning patients who
suffer from medical malpractice will have far greater access to the legal system
and far greater medical concerns. And they are freer from medical malpractice
because physicians and others would become a bit more circumspect in the kind
of care. Maybe theyíd read the labels a little better.
So I know there are a lot of people testifying. In behalf of our
members, let me say that we are absolutely opposed to unreasonable caps. All
these caps are unreasonable because it would deny our constituents their day in
D E N A M O T T O L A: Good afternoon. My name is Dena Mottola. Iím
the Executive Director of the New Jersey Public Interest Research Group, and
Iím also here today to strongly support the direct subsidy approach, which we
believe is the best solution to the medical malpractice problem. We think that
New Jersey needs an immediate solution to this crisis. We think that we need
immediate relief. From the point of the view of the patients and patient care
and access to patient care, we need direct subsidies because we need our doctors
to have immediate relief to the crisis so that they donít leave the state, so they
stay here and take care of us.
So I implore the members of this Committee to take a serious look
at this issue. I know Assemblyman Roberts made the case very well. This is
something that weíve been advocating, and we think this is the right solution.
Weíre tired of hearing the Medical Society say that caps are the only way to
protect a patientís access to care. Caps are not the magic bullet. Direct
subsidies are the magic bullet. Even the Medical Societyís own report, released
in March, acknowledges that caps are not an immediate solution. And I quote
from Page 16, "We would not recommend an immediate rate reduction, as a
result of a cap on noneconomic damages, because of the uncertainty as to the
amount of the benefit resulting from the reform, the apparent current rate level
inadequacy, and uncertainly as to whether the reforms will be upheld in the
So I think that -- even many consumer groups have put out research
saying that caps wonít work and wonít solve the problem, and this is, in fact,
the own New Jersey Medical Societyís research.
Direct subsidies are money in the doctorís pocket -- 50 percent. Dr.
Williams just spoke. I understand sheís experiencing a lot of difficulty in her
practice. A 50 percent subsidy brings her rate down to almost what it was when
she said 30,000, when she was practicing, when she didnít think that there was
a particular problem. It would be retroactive. So, again, money in the doctorís
pocket, back to the time when rates started to increase. I think that the
physicians in this state are just foolish not to support this approach as the best
to solving the problem.
Thereís another reason, from my point of view, why I think this is
the right approach, and that is it acknowledges that this is an insurance crisis
and that itís cyclical. That right now weíre at the high end of the cycle where
rates are high. Weíre coming back. Eventually, weíll come back around, and
this subsidy can -- we can sunset it as the problem goes away and naturally
attenuates. So we think this is the right solution.
Youíre going to hear, or you already did hear a lot why caps are not
right for consumers. I just want to add my voice, New Jersey PIRGís voice, to
why we think caps are anticonsumer. And just in general, access to the civil
justice system when injured is an important civil right afforded to members of
our society. Even when the injury is the result of a physicianís negligence, that
right must be upheld. Doctors are not exempt from accountability. From the
point of view of the victim, a disability caused by medical negligence and a
disability caused by anything else -- a reckless driver, you name it -- is still a
disability. They live with it for the rest of their lives.
So, as we go forward in this debate, letís finally reject this whole
conversation about caps and move onto the solution that we think can actually
solve the problem. You heard Assemblyman Roberts talk a little bit about why
caps wonít solve the problem. I think thatís the practical reason. It certainly
isnít the most compelling reason why we should abandoned caps as a solution.
We heard from the victims. Thatís the most compelling reason. But just to
quote some research that just recently came out from the Center for Justice and
Democracy, a report they released last month, that says that in the three states
where lawmakers recently enacted caps -- that would be Nevada, Mississippi,
and Ohio -- doctors are still struggling to find affordable insurance.
Weíre going to see doctors coming back clamoring for a solution,
if the only solution that weíre going to be looking at is caps, because-- And I
would guess that the solution that theyíd be coming back for is a subsidy,
because we have a crisis and we have to deal with it now.
I just want to conclude by talking a little bit about the long term,
because we need to get out of the short-term crisis. We also need to do what we
can to prevent the crisis from coming back around again, and getting the cyclical
problem. So how do we prevent a future crisis, and what else does New Jersey
PIRG advocate, besides the direct subsidy now? This is what we do for a crisis.
And we probably, in the next 10 years, will be back where we are today, where
we can give consumers the ability to have more power in the market --
consumers meaning doctors who purchase medical malpractice insurance -- and
give doctors the ability to form purchasing alliances to negotiate with
malpractice insurers to get lower rates. We can do insurance reform like
California did, where we can actually ask insurers to open up their books. If
they want to increase over 15 percent, they have to justify it.
So there are long-term solutions out there, that are not caps, that
would help solve the problem tremendously. But I think, right now, in the short
term, the direct subsidyís, the right way to go. Letís help doctors ride out the
Thank you very much for allowing me to speak today.
D E N N I S M. D O N N E L L Y, ESQ.: Madam Chairwoman, itís not
just because youíre my Assembly person that I thought you did a nice job in
responding to Dr. Williams about the positive aspects of your bill, in other
words, the decrease in the--
ASSEMBLYWOMAN WEINBERG: Excuse me, would you just
identify yourself, even though I know youíre a constituent.
MR. DONNELLY: Thank you very much.
Iím Dennis Donnelly. Iím counsel to CCJ, and I wanted to just
add to your statement to Dr. Williams that, in actuality, A-50 -- although some
of the changes in the Senate version were for the worse -- also contains in
Section 20 a limitation on the rate of increase that any one insurance company
can charge. Thatís actually Section 22. And, in Section 20, contains an
additional safeguard or protection, and that is that the type of case that Dr.
Williams mentioned, where sheís a peripheral defendant, could not be included
in increasing the rates. So I think those are examples of positive things that
youíre trying to do.
I also want to point out to you that the presentation from the AOC
gives a very specific example of why, perhaps, your addition, to the remittitur
standard, also dealt well with the problem. Although, frankly, judges are
already dealing with the problem. Because in the data you were given, there was
a $9 million verdict, which you will see was remitted by the judge to a $1
million verdict. So that, actually, $8 million of the data you were presented
from the AOC was eliminated from the mix. So when youíre looking at their
median numbers and when youíre looking at their average numbers, you can
also back out that $8 million, because the judge did the remittitur. And Iím
sorry, I donít have it in front of me, but itís in there, and you will see it.
ASSEMBLYMAN CONAWAY: No, itís 1.4. Iím fine.
MR. DONNELLY: Am I frustrating you? Okay. The last point
that I would make is this, and it is an important point. When consumers speak
to you about -- on behalf of AARP, on behalf of senior citizens, or on behalf of
minors who are the opposite end of the spectrum -- they talk about the two
parts of our society who, I think, weíve always protected the most. And the
legal term that you can apply to that is equal protection. There are real issues
about the constitutionality of caps. And the reason why many states have had
a legislature pass an arbitrary and unreasonable cap, and then had the courts
come and reverse them, is that equal protection means that all parts of the
society -- the children, the elderly -- are protected the same. And if you apply
something based on noneconomic loss, you are unequally treating a large
number of people.
Actually, the AARP Web site has an excellent series of articles, the
last time caps came around, and they had one other disturbing statistic. The
elderly are the largest percentage of the unfortunate recipients or victims of
medical negligence, because they need more medical care and there are more
medical mistakes that are made in that care. So, if you deal with this in the way
itís been presented and the unfair way of "noneconomic damages," you are
visiting on the people who are going to have the most errors made the most
restrictive access to justice. And thatís just not the right way to go.
P A U L D. A M I T R A N I: Good morning, Madam Chairwoman,
members of the Committee, my name is Paul Amitrani, and Iím the Past
President of the Hemophilia Association of New Jersey. The Hemophilia
Association of New Jersey opposes any law that limits an individualís access to
the courts. By access, we mean anything that impedes the ability of an
individual to bring suit, or to be fully compensated for their injuries. A-50 does
not specifically target the hemophilia community. But our struggle with major
pharmaceutical companies in the early í90s, over HIV contaminated blood
products, has made us extremely vigilant of anything that might deny an
individualís right to legal redress in the courts.
I know many of you were very helpful to us during that crisis
period, and I would just like to thank you, again, for the assistance that you did
provide at that time.
Rather than caps, the Hemophilia Association of New Jersey favors
the traditional means of determining damages -- the jury system. In this way,
all parties to the action get a fair hearing of the facts of their specific injury, and
the jury makes a case-by-case determination as to the amount of damages. It
is our position that this is the only fair way to determine compensation.
ASSEMBLYMAN CONAWAY: Madam Chairman?
ASSEMBLYWOMAN WEINBERG: Yes, Assemblyman.
ASSEMBLYMAN CONAWAY: A couple comments and questions.
Any time you put a dollar value on human life, I would say, that itís being
trivialized. Whether you are talking about $20 million or $30 million, youíre
still putting a value on someoneís life. And that, I think, in any scenario,
Someone commented that weíre focused on this cap issue. One of
the reasons why weíre talking about caps is because thereís general agreement
on many of the other things that are there. Caps is the most controversial one,
and sorry that we are discussing it and people are bringing it up, but
unfortunately, thatís the big rub in the legislation thatís being proposed. And
if you look at my own legislation and even the legislation weíre considering here
today, we are talking about comprehensive solutions that are aimed at various
aspects of the problem.
Now, one question that I have, and of course, there are more than
one ways to get at someone. Because one of the issues that has been raised is
the access to folks, generally, to the courts. And some believe -- I havenít made
up my own mind about this -- is that we do -- that perhaps our system ought to
do a better job at getting people who are injured into court, so that thereís not
this sort of income bar -- so much is driven by how much the lawyer is going to
get out of the case that many people who have been injured donít get to court
at all. And that we -- and I donít know if the AARP is saying this or whether
PIRG is saying this -- some kind of a system, whether you call it a workmenís
comp-like system, or some kind of a system, to get folks who have been injured
some kind of compensation, whether youíre looking at that.
Because when you talk about fairness -- and Iím a Democrat, I
donít mind saying so -- having people who have been injured get some kind of
compensation is very important. We donít have that now. My understanding
is that only a small percentage of people who actually have injury are able to go
to court and get any kind of recovery. And maybe when we start talking about
reform and thinking about fairness and equality, as has been raised, we ought
to think about whether or not this kind of a litigation-driven system is the best
way to get people all they need.
So my question is, have you folks been studying the most
comprehensive reform, and that is some kind of workmenís comp system that
makes sure that everybody who is injured gets some kind of a judgment and
determination to give them some redress.
MR. AMITRANI: Dr. Conaway, thereís never--
ASSEMBLYWOMAN WEINBERG: Excuse me, before you
Assemblyman McKeon would like--
ASSEMBLYMAN McKEON: Thank you very much.
Iíve been -- and I will continue to keep -- quiet and, hopefully, stay
on message and listen to the testimony weíre supposed to today. But I have to
say to my colleague -- and I know you probably didnít mean what you said, and
maybe you did -- that the same way that you took umbrage relative to that, that
the doctors are in opposite with the views of their patients-- To say that
litigation is driven by attorneys not because itís in the best interest of the people
that theyíre duty-bound to represent, but because of the money there is, well, I
think thatís just insulting. I know many, many lawyers, of which you are one,
a member of the bar, who move and proceed in the best interest of their clients,
often at their economic peril relative to them taking the case on contingency.
Now, Iím going to tell you the farce that all this is, relative to us
talking about jury verdicts. The bottom line is that if the Senate version or any
type of cap go through, thatís all weíre going to see is jury trials. Because the
bottom line is that jury trials in the State of New Jersey, relative to medical
malpractice, work very well. Take a look at what the AOC gave you. Look at
the number of cases tried and look at how many resolve in the favor of the
doctor. So letís all keep in mind, if we go forward with any type of cap,
modified, what have you, that that is going to result in the insurance companies
going forward and trying 90 percent of the cases. Those numbers, of 700
resolved, youíll see go down to about 50, and then youíll have 10 other pages
attached for the next year, relative to cases getting tried and juries making those
decisions. And that will be the effect of that kind of cap.
ASSEMBLYMAN CONAWAY: Well, let me just respond.
ASSEMBLYWOMAN WEINBERG: Excuse me, but we are going
to have a lot of time to discuss among ourselves what weíre going to be doing
with this bill in the future. Weíre kind of even. Weíve insulted the doctors and
the lawyers now (laughter), so Iíd like to go back to Mr. Donnelly.
ASSEMBLYMAN McKEON: Both of us deserve it.
MR. DONNELLY: Thatís equal protection, actually, and thatís a
Dr. Conaway, I think that is a different debate. I will tell you this.
That no one who has ever been involved in a workersí compensation claim is
satisfied with their claim. So youíre suggesting a relief thatís worse than the
disease. But in any event, thatís for another day, and I do appreciate being here.
MR. AMITRANI: Iíll defer to Assemblyman McKeon any day,
because he did a better job than I could.
ASSEMBLYMAN CONAWAY: Can I comment on his testimony?
ASSEMBLYWOMAN WEINBERG: Okay. Are there any other
questions for this panel, because we do-- We have another doctor whoís waiting
to see a patient, and we have the Medical Society, who Iím sure is getting a little
antsy about the length of time theyíre waiting, but go ahead.
ASSEMBLYMAN CONAWAY: Oh, I was just going to say that
counsel for CCJ makes my point. When you have a $9 million verdict that
comes out of the box, in that case, the judge did happen to remit that award.
But the concern is that a different judge wouldnít do that, and you have $9
million sitting there that needs to be paid. So the fact of the verdict itself, I
think, is concerning. It might have been appropriate. That judge happened to
think that verdict was not. You might get another judge, or many other judges,
who think that thatís perfectly fine and that will have, in our view, a very
detrimental effect on our cost structure, because it affects the cost structure of
the people who insure us.
MR. DONNELLY: But again, your own bill has modified and even
strengthened the judges ability to do that--
ASSEMBLYMAN CONAWAY: True.
MR. DONNELLY: --so that seems highly unlikely.
Thank you very much.
ASSEMBLYWOMAN WEINBERG: Thank you.
We have another physician who has asked to come forth, who also
has a patient waiting, Dr. Stephan Lomazow, is it?
S T E P H A N M. L O M A Z O W, M.D.: Lomazow. Thank you.
ASSEMBLYWOMAN WEINBERG: Lomazow, thank you.
And then heíll be followed by the New Jersey Medical Society.
DR. LOMAZOW: Thank you very much.
Madam Chairwoman, thank you. My name is Dr. Stephan
Lomazow. I created the concept of the fund that recently passed the Senate,
introduced and refined by your honorable colleague, Senator Raymond Lesniak.
I have no personal agenda. Being a neurologist, I am not in a high-risk
My concern is for the future of medicine and how an unfavorable
environment to practice, contributed to by skyrocketing liability premiums, will
impact upon the health and welfare of the people of this great state and country.
I have had extensive and substantive conversations with leadership of the
medical, osteopathic, legal, political, and insurance communities in an attempt
to better understand their positions and find an equitable solution to this
exceedingly complicated problem.
The essential question is, how can moneys raised by the State be
best utilized to beneficially impact the system of medical liability insurance?
The present legislation proposes a subsidy for physicians in high liability crisis
specialties. I would urge you not to adopt this approach. First of all, it would
be an administrative nightmare and vastly more expensive than the Senate
proposal. The needs of a pediatrician or a senior part-time clinician, for want
of a few thousand dollars, who would ordinarily stay in practice and then retire,
is equal to that of a neurosurgeon whose premiums may be elevated by 75 to
$100,000 a year.
There is no equitable way to distribute a subsidy of insurance
premiums. Moreover, it does nothing to affect a long-term solution to the
problem, and it is not what the organized medical community wants.
Politically, my mentor, Senator Lesniak, has told me on numerous occasions,
"Donít give people something they donít want," citing the billions of dollars to
education by former Governor Florio, only to have the teachers demonstrating
in Trenton the next day.
Organized medicine is focused on caps on liability. They have
commissioned studies which show a relationship between caps on liability and
stabilized cost of premiums. They are not interested in Band-Aid approaches,
even those which may have an obvious and immediate benefit for high-risk
The Senate bill is not a cap. Most of the testimony you hear today
is against caps. The Senate bill is not a cap. It is a limitation on the personal
liability of physicians against large awards for noneconomic damages. A cap is
not on the table. Senator Lesniak is opposed, in any form, to a cap.
The legal profession feels that the insurance industry is primarily to
blame. Fortunately, both the medical and legal professions are in favor of
needed reforms to protect doctors against frivolous litigation and against
penalizing them for being named in an action in which they were not involved,
as you heard earlier. Neither the doctors nor the lawyers are wrong. The crisis
is multifactorial, precipitated by greedy insurance companies that artificially
lowered rates to get market share in a favorable economic environment, and now
have to bear the consequences after a fall in investment income. Itís about a
small percentage of incompetent lawyers who will bring wrongful and poorly
prepared litigation. And yes, a small percentage of physicians, who overreached
The essence of the dispute about the fund, as it is created, is
whether or not it would encourage or discourage litigation, as Assemblyman
McKeon so clearly spoke. Some would then argue, why wouldnít insurance
companies then not settle any cases and wait for the State to pay their bills after
a trial. Senator Lesniak believes that the strong bad faith language in the Senate
bill will afford protection against this. I agree, but I also feel that there is even
greater potential to encourage early settlement of cases, by applying a portion
of the fund to the noneconomic portion of cases that settle rapidly and
Everyone agrees that prolonged litigation adds undue expenses that
raise premiums and are passed along to the physicians. Another very major
point of contention between the interested parties is the ratio of economic to
noneconomic damages in malpractice awards. The Medical Society, in some
degree, citing the AOC report, believed that the noneconomic damages in cases
settled last year totaled about $175 million, which is 70 percent of the total.
The trial lawyers believe this number is grossly inflated. Obviously, the greater
the percentage of noneconomic damages, the greater the effect on rates by any
limitation or subsidy of them. An accurate determination of the true number is
absolutely critical. I would urge the Assembly to obtain this information from
the carriers and carefully analyze it.
Also, one thing thatís been overlooked here is the implications of
concurrent Federal legislation -- have been overlooked. It is stalled in the
United States Senate, but if passed, any cap on damages imposed would be
applicable to New Jersey unless some preemptive measure, presently lacking in
the New Jersey legislation, is enacted.
The creation of a streamline, fair, and efficient system of medical
liability is a daunting task requiring innovative, bold, and well-thought-out
ideas. The Senate bill, in my opinion, is an excellent foundation. I would urge
the Assembly to build upon it.
ASSEMBLYMAN COHEN: Thank you, Dr. Lomazow.
DR. LOMAZOW: Thank you very much.
ASSEMBLYMAN COHEN: The New Jersey Medical Society.
MR. CANTOR: Thank you, Madam Chairman, Mr. Chairman.
Again, my name is Ray Cantor. I am with the Medical Society of
New Jersey. I do have a few comments I do want to make about the issue of
subsidies. But first, I want to introduce James Hurley, from Tillinghast-Towers
Perrin, who is here today to talk about the report he did on behalf of the
Weíve heard many people testify today about what are the drivers,
what are the causes, why are rates going up, and what can we do about that.
There are a lot of nonexperts who are posturing their opinions. There are people
who say that they know the answers. The Medical Society of New Jersey,
representing the physician community in New Jersey, was, and remains,
dedicated to finding out what the truth is. But itís really our members who are
being impacted most severely by this crisis. We have no interest in coming up
with a solution that is false, and itís not going to help our members. We have
no intention of trying to fight battles that donít have to be fought, if theyíre not
going to result in substantial premium relief for our members.
It is with that emphasis in mind that we determined to find out
what the truth is and to find out the possible solutions to solve this crisis. In
order to do that, we engaged the services of Mr. Hurley, who is a nationally
renowned actuary. And what we did then was negotiate with Princeton
Insurance Company and MIIX Advantage, or MIIX Insurance Company, to
release to Mr. Hurley their proprietary data over the last 10 years. We, as the
Medical Society, have not seen this data. It remains confidential. We had to
sign confidentiality agreements. But this data was turned over to Mr. Hurley for
his analysis and his report.
Princeton and MIIX, I believe, represent, maybe, 70 or 80 percent
of insurance policy coverage of the physician community in New Jersey. So we
think their data really is telling as to what is going on in New Jersey. Now,
having said that, I will turn it over to Mr. Hurley to present his findings.
J A M E S D. H U R L E Y: Good morning, Madam Chairwoman, Mr.
Chairman, and members of the Committee. I think Ray is probably describing
in greater detail and with greater glory than I deserve, so Iíll not mention
anything about what I do. But I have spent the last 20 years, believe it or not,
looking at med-mal problems as a consulting actuary. I am an actuary by
training, which means my tendency is to try and figure out the score. So some
of my comments are going to focus on that score-keeping process and how we
see the score at this moment.
I guess, itís fair to say, that itís anticlimactic to say thereís a
financial problem as it relates to medical malpractice in New Jersey, as there is
in many other jurisdictions. Our task was to find out what that problem was
and what some of the drivers are. First is, it seems clear that the payments that
are being made by these companies are in excess of the premiums that theyíre
collecting. There is actual paid data that is indicated by these companies that
is exceeding the premiums that theyíre collecting. So clearly, from their
standpoint, the economic proposition is not working very well.
The data that we were provided indicated that there was roughly
$1.36 or so in paid expense and loss dollars relative to the premium they
collected, and thatís on a paid basis. Unfortunately, youíre not providing paid
coverage in this state. Youíre not providing claims-paid coverage, youíre
providing occurrence coverage, which means if trends continue at the rate they
are, that number will not be $1.36 or $1.40. It will be something closer to
$1.70 or $1.80. And no amount of investment income is going to offset that
These studies are based on several sources of data, including the
information that the two companies that Mr. Cantor described provided to us,
as well as published data. In fact, most of our work was done based on not just
the two companiesí data, but on the broad medical malpractice industry data
that we were able to collect in conjunction with the study that we did.
So a couple of findings about why thatís happening. Itís our
conclusion that the primary reason for these needed higher rates and the loss
statistics that we see is an increasing severity. There is data that shows clearly
that thereís a higher severity in current periods relative to prior periods. Thereís
an increase in the percentage of claim dollars that are being paid relating to very
severe claims, and those are claims of over a million dollars. If you go back four
or five years, the data says that, roughly, 15 percent of the claim dollars that are
paid to claimants were related to claims that cost more than a million dollars.
Today, or in 2002, that percentage now has exceeded 25 percent, based on the
data that was provided to us. So more severe claims are occurring, more claim
dollars are being paid on those severe claims.
A second reason that contributes to the increase is the level of
investment income that companies can make. And that doesnít mean that
companies lost money on their investments and are recouping that. And Iíll
touch on that in a moment. What it means is that interest rates out there,
which is the way most companies invest their assets, are lower. Interest rates
dropped 250, 300 basis points over the last several years, and we all know thatís
true. We all feel that in our investments. Well, insurance companies feel that,
too. And when you change the rate of interest that you can earn on assets --
because these companies reflect investment income and reduce the rates, in
response to that level of investment income, when interest rates are lower -- rates
will be higher. Itís a calculation that gets done whenever rates are determined.
And when interest rates go down, rates will, generally, go up. And thatís where
we are today -- in a lower interest rate environment.
I mentioned that stock market loss -- sometimes itís mentioned that
stock market losses are a cause for increases in rates, and, in fact, thatís not the
case. These companies invest very little of their assets in the stock market. And
while they have-- To the extent they did invest them, they have separate losses
they are not able to recoup that -- and Iíll come back to that in a moment -- in
the rates that they file.
Our study indicated that the rate increases that have been taken so
far are justified. We have reviewed rate filings of the companies, that were made
with the Insurance Department. We have analyzed the data that we have
available to us, provided by the companies and in the general industry, and we
conclude that not only are those rates justified, we fear that the rates are not
adequate at this moment. In fact, there may be need for greater rate increases.
One reason for the timing of this, and one reason for the difficulty
in identifying these needed rate increases, is the fact that itís hard to identify
these changes in trend levels. And youíll see in our report that we show you
some graphs of the level of changes in severity of claims. Thatís the average cost
of a claim over time. And youíll see that that number doesnít go in a nice
smooth line over extended periods of time. It will shift. Itís those shifts and
those turning points in the data that are most difficult for anyone to identify.
And even when you study it persistently, over time, you may not be able to
identify it. Itís those shifts, and recognizing those shifts, that are difficult; and
itís partly those shifts that weíre seeing affecting the level of the increases that
are being implemented at this point in time. As I say, to the extent that that rate
of increase has not been arrested somehow, itís possible that there will be further
increases needed as we go forward.
Just a couple more thoughts. I just wanted to discuss a couple of
misconceptions. First is that insurance companies recoup investment or
underwriting losses in rates that they charge prospectively. That is not done.
That is not allowed. The law, in general, in most states will prohibit you from
doing that. Rate making, as it is called, the setting of rates, is a prospective
exercise. It is a forward-looking exercise. You set rates based on what your
experience has been, but youíre not able to go back and say, "Well, I lost money
in underwriting last year. Thatís my insurance operations." Or, "I lost money
in the stock market." That doesnít get into the rate-making process. Itís a
The second misconception is that insurance companies report bad
results to justify higher rates. Again, not done. A clear example of that is very
close here -- is the fact that if MIIX reported bad financial results to get higher
rates, it didnít work, because theyíre in runoff. And thereís several other
companies that were mentioned. FICO, for example, didnít report bad financial
results to be put into liquidation. And there are other companies who have
suffered that same fate.
And St. Paul, a major writer, the top writer of business in the
country, withdrew entirely from medical malpractice. Not because they wanted
to make the money back -- because with increased rates in medical malpractice,
theyíll never make the money back. Theyíre out of the business. So this, in the
words of St. Paul and the published statements they made, is that the business
is too unpredictable -- "We cannot adequately predict these losses and,
therefore, we want to deploy our capital in more prudent ways on behalf of our
Lastly, I just wanted to talk for a moment about the issue of cycle.
And certainly, I donít think we would argue that there is not a cycle, an
economic cycle out there that somehow dovetails into and affects the insurance
business, and so, as such, part of the cycle for the insurance business.
Unfortunately, where we are is not going to get much better. The losses that we
have today, the level of investment income needs to be reconciled with the
premiums, and thatís the process that weíre going through right now. In other
words, those loss levels and those investment income levels are being reconciled
to premium. And the premiums that are being charged today are functions of
those losses and those investment income levels. Unless you do something to
change those, these rates are not going to go down prospectively. At least, you
should have no expectation that theyíre going to do down prospectively. And
so the changes in the financial environment are not likely to change,
substantially, the level of the rates that are being put into place.
And with that, Iíll conclude and answer any questions you would
have for me. I know you have a very thick piece of paper or set of papers in
front of you, and I apologize for that.
ASSEMBLYMAN COHEN: Assemblyman McKeon.
ASSEMBLYMAN McKEON: Yes. Thank you.
And thank you for your testimony.
My question is relative to the -- I donít know how familiar you are
with the current Senate bill -- but it is the way itís drafted. It applies
retroactively. Meaning that if it was to be passed, every lawsuit thatís currently
filed and not yet disposed of, it would apply to. Now, thereís a cause for
concern for those proponents of that bill that that provision will be challenged
with the court. Thereís a very good chance that at least that provision will be
deemed unconstitutional. If that was to happen -- letís not talk about if it
would or wouldnít -- if that was to happen, what would be the effect, if any, on
premiums over the next five years, if the cases currently in the pipeline were
affected by the modified cap, and as a matter of fact, if there was maybe a ton
that would be filed, out of the hope that one wouldnít be affected by the cap?
MR. HURLEY: If I understand the question, youíre saying that the
cap that would be put in place would apply to claims currently in process.
ASSEMBLYMAN McKEON: Thatís what the proposal is. Thereís
a school of thought that thatís going to be -- if it was passed, that the courts
would have a final say on that, as it may be unconstitutional. So, if that was
declared unconstitutional, would there be any effect on premiums? As a matter
of fact, theyíd go up, wouldnít they?
MR. HURLEY: Itís quite possible they would go up. I donít know
to what extent the loss estimates, at this point, would reflect some expectation
of favorable results due to the change in the law. I donít think they would, at
this point, if the law hasnít been passed. I think what would have to happen is,
youíd have to sort out those claims over time and see what happened. But itís
quite possible that-- As I say, the loss experience weíve projected here
anticipates no changes in the environment. And so $1.70, $1.80 is what weíre
looking at for underwriting results, which cannot be offset by investment
income. So the results could get worse. I doubt, seriously, it would get better.
ASSEMBLYMAN McKEON: And as we all know, the doctors do
need some relief. And going forward in that direction, that relief is, at least, five
years off, as opposed to the current bill that the Assembly is proposing, and
thatís immediate relief.
MR. HURLEY: As I understand these bills, the so-called subsidy
bill thatís been described would represent an immediate reduction, I guess, in
certain circumstances to be defined. And that would give immediate relief to the
physicians. I guess the question for you folks to deliberate about is, what is the
long-term solution? Thatís a more difficult question. Certainly I could see the
desirability of a bill that would give some sort of immediate, short-term relief.
But as time goes on, thereís no signals in this data, and if you do nothing to
affect it, thereís no signals in this data that these losses are going to go down.
They are, in fact, where they are.
ASSEMBLYMAN McKEON: And the last question -- relative to
the comprehensive, all the other changes, even as they relate to both frequency
and severity, as actuaries should look at all the other changes in the proposed
law -- if theyíre given a chance to percolate over four years, will then, from an
actuary perspective, would that lead to improvement?
MR. HURLEY: I donít know that I could articulate exactly all the
provisions of the bill. I think itís one that we had looked at. My recollection
was that the bill, if it was AB-50. Is that--
MR. CANTOR: Yes, A-50. I assume youíre referring to the bill
that came out of the Senate.
ASSEMBLYMAN McKEON: Yes.
MR. HURLEY: With the $300,000 in excess liability fund.
ASSEMBLYMAN McKEON: I am referring to that bill, but the
point is, and it seems the witness has answered the question, that heís not
analyzed all of the bill to understand, when given five years for all those reforms
to percolate, whether or not that will improve the environment, therefore
resulting in the ability to stabilize rates from the insurance industryís
MR. HURLEY: If it was a bill that the Medical Society asked us
to review, it was our conclusion that that bill probably would have a net effect
of increasing costs slightly.
MR. CANTOR: Excuse me, excuse me. Youíre--
ASSEMBLYMAN COHEN: No, let him finish. Let him finish.
MR. CANTOR: I think heís referring to the wrong bill.
ASSEMBLYMAN COHEN: Maybe you donít understand, let him
MR. HURLEY: I think that the right solution would be-- We were
asked to look at one version of the bill, in fact, several versions of the bills over
time. And I think, in order to provide a proper answer to the question, perhaps
I could submit something after weíre done here, so Iím looking at the right
version of the bill. We had looked at several versions, and there was one that
looked to us like it would actually increase costs, rather than decrease costs. I
should look at the exact bill youíre referring to and give you a written response
to that, if you donít mind.
ASSEMBLYMAN McKEON: All right. And Iíll appreciate that.
Thank you, Mr. Chairman.
ASSEMBLYMAN COHEN: Thank you.
ASSEMBLYMAN DíAMATO: Thank you, Mr. Chairman.
Sir, if I could direct your attention to Page 2 of your report, where
you talk about reliances and limitations. You say, in part, and Iíll quote it, "We
have also relied, without audit, on information contributed to the Medical
Society of New Jersey study by MIIX Insurance Company, MIIX Advantage of
New Jersey, and Princeton Insurance Company." Did you write a letter, or did
the Medical Society of New Jersey write a letter, to MIIX and Princeton,
itemizing the data that you needed in order to do an objective and an
intellectually honest analysis?
MR. HURLEY: The way the process worked was, the Medical
Society of New Jersey retained us, and we defined a data request that was
provided to the companies.
ASSEMBLYMAN DíAMATO: And did you get all the data that
MR. HURLEY: No. We never get all the data we want.
ASSEMBLYMAN DíAMATO: Tell us what you asked for that you
MR. HURLEY: I donít know that I could articulate exactly what
we didnít get that we asked for, sitting here at this moment, but there were some
details of data, breaking it down into coverage year -- that type of information --
that we were not able to obtain from the companies, and therefore, we did not
use those types of analyses.
ASSEMBLYMAN DíAMATO: Now, the fact that you relied on
information without an audit, in simple English for everybodyís comprehension,
what does that mean?
MR. HURLEY: That means that the data was provided to us by the
companies without having, for example, an accounting firm review the data to
match it against, exactly, their records. So, for example, what we get is a data
run or a list of claims that was not reconciled by an auditor or an accountant to
the individual claim records within the company.
ASSEMBLYMAN DíAMATO: So, if the data that was supplied to
you by the two insurance companies, MIIX and Princeton, was intentionally or
negligently skewed a certain way, then the conclusions of your report would,
perhaps, be different.
MR. HURLEY: Well, clearly, if the data was biased in some way
by the companies, it would affect our conclusions. However, I would comment
that that was not the only data that we used in doing our analysis.
ASSEMBLYMAN DíAMATO: As part of your analysis, did you
do a study of the investment practices of MIIX and Princeton over the last 10
MR. HURLEY: No.
ASSEMBLYMAN DíAMATO: Why not?
MR. HURLEY: We didnít think-- Well, actually, that wasnít the
focus of our analysis. Our focus of analysis, on their particular information,
was on the claim or the loss side. We did look at the relative proportion of
assets that they had in equities versus bonds, fixed income, interest, and that
sort of thing, but did not review the investment practices of these companies
over the last 10 years.
ASSEMBLYMAN DíAMATO: Have you ever investigated an
insurance company, particularly medical malpractice insurance company,
regarding their investment practices, as to whether they were reasonably prudent
in their investments?
MR. HURLEY: I am not in the business of reviewing companiesí
investment practices. Thatís sort of outside my area of expertise. But I am
familiar with how these companies invest their assets, having looked at them
over the last 20 or so years. So I think Iím familiar with it, but I donít
investigate it. No.
ASSEMBLYMAN DíAMATO: In order for this combined
legislative Committee to do something thatís fair, would you recommend to us
that we study the investment practices of the two companies to see how this
MR. HURLEY: While Iím not comfortable with advising the
Committees about what they should or should not do--
ASSEMBLYMAN COHEN: Feel free. (laughter) Itís an open
MR. HURLEY: It would be my observation, based on past
experience, that looking at companiesí experience over time, it has typically not
been investments that have been the cause of problems. So my experience is
that in looking at the investment practices of these companies, over the time Iíve
dealt with them, the problems do no emanate from the investment side. And I
can tell you that if they did emanate from the investment side, as I mentioned
earlier, relief in the form of increased rates would typically not occur, as a
consequence of that.
ASSEMBLYMAN DíAMATO: Okay.
Thank you, Mr. Chairman.
ASSEMBLYMAN COHEN: Dr. Conaway.
ASSEMBLYMAN CONAWAY: Just to reiterate a point on that,
with your experience looking at these insurance companies -- not only in the
State of New Jersey, but across the country -- that-- Because the claim is that
all of these huge increases that weíre seeing are due to their losses in either their
interest income or to their stock market income. And I think you testified -- or
losses -- that there is not much of a correlation between those factors and the
premiums that are paid. Isnít that right? Is that a fair statement?
MR. HURLEY: I believe it is, but let me state it again, just so Iím
clear. Rate increases today are not a function of investment losses from
yesterday. Companies are not increasing their rates because they lost
investments or they lost money in the stock market or anything like that. It is
partly a function of the fact that they cannot invest the premium flows theyíre
going to collect next year in interest instruments that are going to generate 6
percent yields; rather, theyíre going to generate 3 or 4 percent yields. So rates
are higher as a consequence of that, but not because they lost money in prior
ASSEMBLYMAN CONAWAY: And so, one would wonder then
about the value of some of the explorations that have been suggested as -- in
terms of how they run their business. But moving on from that, you seem to
suggest in your comments, if I understand them, at least in your study of what
goes on in New Jersey, that there has been a trend toward higher awards.
Because this has been one of the big bones of contention here from the one time
we were able to get one of the insurance company executives to come in, that
theyíre seeing higher and higher payouts which is affecting -- which is a second
question, because of a following question -- which is affecting the premiums that
they have to charge. I mean, theyíre looking at what their liabilities are, going
forward, and trying to make a prediction about what itís going to be, in setting
a rate. So, did you say, and from your analysis, did you see or are you seeing
evidence which supports their contention that the awards, in fact, are higher
than they had been in previous years?
MR. HURLEY: Yes. The awards are higher, and correspondingly,
the settlements that they make, which are not awards, to distinguish between
jury findings and payouts, are likewise moving up. So the combined effect of
those is increasing and, therefore, driving up rates.
ASSEMBLYMAN CONAWAY: Very good. Thatís what I had
thought. And it is true to say that those awards have to affect the premiums
they charge the physicians, or is that-- I mean, I know thereís some other
factors going in there, but what would you say is the principle driver of the
premiums they have to charge us?
MR. HURLEY: The key driver is lost costs. Most of the dollars
that these companies spend money on is on lost costs and defending claims.
Thatís where most of the money gets spent.
ASSEMBLYMAN CONAWAY: Thatís what I thought.
Now, one of the-- To go back to Assemblyman McKeonís point,
because I think what he was trying to get at-- And I read your initial report to
the Medical Society, and you did say, and your comments on the bill before
you, that you were concerned that some of the provisions might actually be cost
drivers. I think that what the Assemblyman was getting at -- who is not here --
was looking, specifically, at the limitation on liability to insurance companies
of $300,000, and whether or not that limitation to their liability, hopefully,
translated to us in terms of a lower premium, whether or not that particular
provision would lower the premiums they have to charge we physicians.
MR. HURLEY: It would be my expectation that it would reduce
the losses that the companies will be responsible for, but I would caution you
in drawing the conclusion that that will translate immediately into lower rates.
And the reason for that is, that the rates need to be adequate. In other words,
they need to be reflective of the current loss level before you can start thinking
about the impact of having lower loss costs reduce them. So the first step in the
process is to get the rates to be adequate. And as I alluded to earlier, they may
not be adequate at this point.
ASSEMBLYMAN CONAWAY: And thatís the problem. What
now, what youíre saying is that we have an inadequate rate structure for the
costs right now, which may obliterate, perhaps, all of the savings measures in
MR. HURLEY: Quite possible, yes.
ASSEMBLYMAN CONAWAY: Now I wanted to get to a point
that has been raised here time and time again by folks regarding the experience
in California, because I think the graph is pretty clear -- over 25 years, and what
has happened there. And itís been a combination of things, which Iíve said in
all of my comments -- which keeps being missed -- and that is that itís a
combination of the cap and the tough regulations they have on insurance
companies. Can you comment on the effect of the proposition in California as
regards insurance reform, and comment, generally, on the method of a cap and
strong insurance regulation in affecting the kinds of premiums that physicians
pay in those jurisdictions?
MR. HURLEY: How long have you got? I guess, a couple of
comments on Proposition 103 and MICRA, which I guess are the two subjects.
It took a while for MICRA to have some impact. And MICRA, which was a
package of reforms, not just a 250 noneconomic cap, it was a package of
reforms that was passed -- was implemented in í75. The companies didnít know
how it was going to impact their losses over time. It wasnít quite tested in the
courts until the middle í80s. You may recall, in the early part of the í80s, and
California was no exception, we had 20 percent inflation rates. In the medical
malpractice trend, we had plus-25 percent per year trend rates. So, you could
imagine, we were running hard just to keep up with that rate of increase. But
thatís the rates of increase we were seeing in the frequency and severity of
claims, in that time frame, in the early í80s.
California, despite that law at that point in time, was not immune
from those types of pressures. So their rates went up during the early part of the
í80s. Their loss costs were going up, driving the rates up. Toward the end of the
decade, there were, roughly-- In the middle part of the decade, there were,
roughly, 200 pieces of legislation passed throughout the country in the middle
í80s. Various ones throughout the states. California, obviously, had already
had MICRA, and I donít know if they had passed anything at that point in
time, but many other states passed many other types of tort reform. And you
may recall that trend rates and inflation rates and the rate of inflation declined
as we got to the latter part of the í80s. Where our prime rate had reached
almost 20 percent in the early part of the decade, it fell off.
Trends, amazingly, fell over. Youíre going into the early part of the
í80s, and youíre seeing 20 percent or more per year. The frequency and severity
of claims rolled over, went flat, and, in fact, declined in the latter part of the
í80s. Well, as that happened, companies reacted to that, learned what was
going on, reduced their rates, and California likewise saw thatís where the
benefit in its loss costs-- And incidentally, at or about that time, MICRA was
confirmed. In other words, it was upheld in the courts -- the 250 noneconomic
cap was upheld.
In 1988 and 1989, I think, Proposition 103 was passed. It was
finally determined that Proposition 103 would be upheld in 1991. In the
meantime, the medical malpractice companies who wrote business in California
had already started to take down their rates in response to the confirmation of
MICRA and in response to the improving loss environment that became
apparent in their data. They, actually, voluntarily made agreements with, as I
understand it -- and this is second hand -- voluntarily made agreements with the
insurance department to give one-time dividends as a consequence of the
rollback provision in Prop 103, and did so, 20 percent. They were already
paying dividends at that point in time, which means they were paying back
premiums that they thought were excessive, as a consequence of the
improvement in the loss experience. So they were paying back dividends, and
part of it, at that point in time, they paid an extraordinary dividend that was
satisfactory of their requirements under the Proposition 103 rollback provision.
Proposition 103 guides, as I mentioned -- confirmed in 1991. We
come into the middle í90s, trends flatten out. And in California, the data had
stabilized in the latter part of the í80s and coming into the í90s, and has
remained relatively flat since that time. My comment to you about Prop 103
and its effect on the rate filings that companies make in California is that losses
drive rates. No rate regulation is going to make losses go away. If the losses are
continuing up, as they are in other jurisdictions, rates will need to go up or
companies will leave or go broke.
In California, the loss costs have been more stable. I cannot tell
you itís cause and effect of MICRA, but it coincides in its occurrence. The
companies have not had the same problems that there have been in other
jurisdictions, and therefore, there has not been a problem as far as Prop 103
needing to hold the rates down. To me, rate regulation is not the answer there.
The loss costs being more stable, more predictable, and increasing at a lower rate
is the answer to why the California rates havenít gone up.
ASSEMBLYMAN CONAWAY: And that part of MICRA, of
course, which affects directly what the losses are, is the cap portion of it, isnít
MR. HURLEY: That is generally viewed as the cornerstone, yes.
ASSEMBLYMAN CONAWAY: And so, if a state or a legislature
is looking at getting a handle on a problem thatís driving physicians out of the
State of New Jersey and Pennsylvania -- they lost a thousand, weíre losing them
here -- preventing people from staying in the state, interfering with our
recruitment of bringing physicians here to the state, because of this environment,
wouldnít you say that policy makers, as they look out across the country, would
make the laws more like California, rather than less?
ASSEMBLYMAN COHEN: You may answer that leading question.
ASSEMBLYMAN CONAWAY: Iím just trying to be a good
counsel, thatís all that counts.
MR. HURLEY: I think that my goal here is not to be a policy
maker or not to advocate for or against reform. What Iím really trying to do is
tell you what I think Iíve seen over time, and what seems to work, and what
doesnít, and what the experience has been. So Iíll defer answering that question,
if you donít mind.
ASSEMBLYMAN CONAWAY: Fair enough.
MR. HURLEY: I think you folks are the folks who are going to
have to face the challenge of that question.
ASSEMBLYMAN COHEN: Oh, this jury will rule on that, but--
MR. HURLEY: Iím sure. You donít need my help, Iím certain.
ASSEMBLYMAN COHEN: Assemblyman Chivukula.
ASSEMBLYMAN CHIVUKULA: Thank you, Mr. Chairman.
Just looking at some of the charts, one chart that saysModel of New
Jersey Malpractice Results without Changes, somehow it seems to stop at 2001 for
MR. HURLEY: Which chart are you referring to, sir? Iím sorry.
ASSEMBLYMAN CHIVUKULA: Itís ExhibitF.
MR. HURLEY: ExhibitF, okay.
ASSEMBLYMAN CHIVUKULA: It stops at 2001, and also there
is an earned premium drop from year 2000 to 2001. Iím just curious, I mean,
why did it stop there? Also, the ExhibitG, you have a model of potential results
with reforms. It looks like the losses and expenses with reforms starts at year
í98, or í99.
MR. HURLEY: First, taking ExhibitF. Exhibit F reflects some data
from a company called A.M. Best, which collects industry data for all lines of
business and all types of coverages. This is data, from that data source, which
collects information from all the companies. The data for 2002 was not
available. In fact, I donít believe itís necessarily available even at this point in
time. Theyíre still assembling that information, which will be available later in
the year. So 2001 was the most recent year we had available.
ASSEMBLYMAN CHIVUKULA: Also, do you know why the
earned premium dropped from 2000 to 2001?
MR. HURLEY: I do not know why it dropped. I canít tell you
ASSEMBLYMAN CHIVUKULA: Any, maybe -- to continue that--
MR. HURLEY: To be honest with you, it looks relatively flat to
me, but it dropped a little bit, I guess, yes.
ASSEMBLYMAN CHIVUKULA: Now, if you look in the
hundreds of thousands, definitely thereís a drop there.
MR. HURLEY: I cannot explain the decline.
ASSEMBLYMAN CHIVUKULA: Itís in the millions, or it is--
And ExhibitG, I have a question on it. How did this -- losses and
expenses, they start diverging with reforms and without reforms. How did this
start in í98? We donít have any reforms right now.
MR. HURLEY: Yes. The idea of this graph is, you may remember
at the early -- at some early comment, I mentioned that the way you provide
coverage in New Jersey is generally occurrence-type coverage, as opposed to
claims-made coverage. The implication of this graph is that -- and I think it was
mentioned by one of my dear colleagues a moment ago -- the implication of this
graph is, if you implement tort reforms, itís likely to have an effect that goes
back and affects claims that havenít been reported or claims that havenít been
settled. So the beneficial effect youíre seeing, reaching back, is the effect on the
claims that are still open or the claims that havenít been reported for those prior
coverage years. And thatís why it affects those.
ASSEMBLYMAN CHIVUKULA: Thank you.
MR. HURLEY: Sure.
ASSEMBLYMAN COHEN: Assemblywoman Nellie Pou.
ASSEMBLYWOMAN POU: Thank you, Mr. Chairman.
Sir, Iíd just like to go back to your testimony earlier. You
mentioned something with regards to the premium increase. Youíve made two
statements that Iíd just like you to just clarify for my benefit. One was that
there is an increase in the severity of claims and rate increases are justified.
Would you say that the awards are higher due to the severity of the cases that--
Is that what your comment is based on, that number? Is it because of the -- the
increase of the severity of the cases has led to the higher awards?
MR. HURLEY: Yes. Thatís probably a terminology problem, and
I apologize for that. When I was talking about severity, I slipped into
actuarialese (sic) on you. Iím really talking about the average cost of a claim,
not the severity of the injury.
ASSEMBLYWOMAN POU: Okay.
MR. HURLEY: So when Iím talking about changes in severity, Iím
really talking about the change in the average cost of a claim over time, not the
severity of the injury or something like that. Does that clarify?
ASSEMBLYWOMAN POU: Well, that helps, yes. No, that
certainly makes a world of difference in my mind in terms of what I understood
you to mean, in terms of increase and severity of the claim. What was your
MR. HURLEY: It is an average claim cost. And what it means is,
itís the dollars paid divided by the number of claims associated with those
payments. Itís the average claim cost. We do not see data in sufficient detail
to determine, for example, whether there are different injuries in a given year.
Our assumption is that thereís a fairly consistent distribution of injury types in
a given period, so that averages can be compared from one year to the next.
Weíre not evaluating the individual severity of claims. Weíre looking at the
overall average of claims. Is that fair?
ASSEMBLYWOMAN POU: All right. Thank you very much.
ASSEMBLYMAN COHEN: Assemblyman DíAmato.
ASSEMBLYMAN DíAMATO: Thank you.
Were you here when the representatives of the Administrative Office
of the Courts testified, AOC?
MR. HURLEY: I think I was in the room. I donít know that I
could quite hear them.
ASSEMBLYMAN DíAMATO: Have you seen the data that theyíve
submitted to our combined Committee here?
MR. HURLEY: No.
ASSEMBLYMAN DíAMATO: Why didnít you contact the
Administrative Office of the Courts as part of your analysis?
MR. HURLEY: I didnít think that it was necessary. My intent was
to evaluate the reasonableness of what the rate structures -- rate changes were.
And part of my purpose was to make a determination about that, rather than
to, in some way, gather data that I couldnít then compare to any premiums, or
number of doctors, or something like that. I need something to compare it to.
ASSEMBLYMAN DíAMATO: Because this -- the combined
Committees here are going to have to deal, I would hope, with the information
supplied by the Administrative Office of the Courts of the State of New Jersey.
And if my math is right -- and I didnít use my calculator -- it seems that the
median jury verdict, in 2002, I have as 300,000, not 350, 300,000. If I counted
right, there were only 18 verdicts in excess of 1 million, and one was remitted,
as we heard before, which is not reflected on here. And it seems that there is a
downward trend in our state in the number of med-mal verdicts. Is that
something that should have been considered by you?
MR. HURLEY: Well, certainly it would be if it were data that were
evaluated or structured or organized in a manner in which we could evaluate it.
We did look at the severity of claims in several ways in the report, both on a
closure-year basis and on, what we call, a report-year basis, which means, sort
of, on a claims-made basis. And we determined from that data that, in fact, the
severity of claims is increasing. I canít easily reconcile that data to your data
without some pretty extraordinary efforts with individual claim information.
ASSEMBLYMAN DíAMATO: As I gather, from quickly going
through your report and your testimony, you did not study the underwriting
practices of MIIX and Princeton over the last five, seven years, did you?
MR. HURLEY: I did not study the underwriting practices, no. I
just evaluated their experience.
ASSEMBLYMAN DíAMATO: But weíve been told by legitimate
commentators, who profess to have no stake in this debate, that these two
companies insured physicians at below fair market value and physicians who
had a history of med-mal claims against them. Is that something that should
have been considered by you as part of your fair and objective analysis?
MR. HURLEY: My analysis was to determine the reasonableness
of the necessary -- or the premiums relative to losses, and whether there was a
legitimate and real driver of what those increases were. It was not to evaluate
their underwriting practices. It was not to evaluate what they may or may not
have charged for an individual physician. It was intended to say, in the broad
aggregate of things, when you compare the premiums they collected to the losses
they have -- and more broadly, beyond MIIX and Princeton, to the data for
medical malpractice, in general, within the state -- do the losses make sense
relative to premium? The answer to that is no. The losses exceed the premium
by a substantial margin. Does that imply that there needs to be rate increases?
And the answer is yes.
ASSEMBLYMAN DíAMATO: Okay. Finally, I have to share with
you a personal experience. I decided to make Italian sauce this past weekend,
because I said I could make it better than my wife. I made it, and I said to her,
"What do you think?" She says, "It seems to be better than what I make." In
your report, you say that caps seemed to be working in states that have the caps,
as opposed to states that donít have any. You use the wordseemed. Is that
something that this legislative body should rely upon -- this report where you do
not conclusively state that caps work? Rather, you say it seems that rate level
can be controlled better.
MR. HURLEY: Let me see if I can put that in perspective. I donít
have any sauce to mix, but Iíll see if I can sort through that. Our view on caps
is that they will reduce the loss payouts. But there are many other dynamics
that go on in a given jurisdiction that affect whatís going to happen to loss costs.
Caps in their singular and absolute -- only by themselves may not actually arrest
the increase in losses, if there are other things that change, that make the losses
So, for example, you shouldnít assume that if you implement an
noneconomic damage cap that there will not be any increases in rates, because
the other major aspect of things is the economic damages, which do have upper
pressure. So for me to sit there and tell you, well, rates wonít go up after you
implement a noneconomic cap, or we can take rates down because we
implement noneconomic caps, ignores the reality of the economic damage aspect
of the equation that is a very significant contributor to that.
Youíre reading, I think, a little, probably, too literally what weíre
trying to get at there, but it is true that there can be no guarantee until such time
as the caps have been confirmed and that you actually see the benefit and the
losses. You really donít know what the impact is going to be. But one thing is
clear, and that is that if you implement caps, even to the extent it doesnít stop
rates from going up, it will make the losses lower than they would otherwise be,
and it will make rates, as a consequence, lower than they would otherwise be.
So it may not make them go down, it will slow the rate of increase. Thatís what
Iím trying to say in my report.
ASSEMBLYMAN DíAMATO: Thank you.
Thank you, Mr. Chairman, Madam Chairman.
ASSEMBLYMAN COHEN: Thank you.
Did you read the A.M. Best reports on MIIX from April 2002?
MR. HURLEY: I canít say that I have, no.
ASSEMBLYMAN COHEN: What was the last A.M. Best report
you reviewed either for Princeton or MIIX?
MR. HURLEY: Let me clarify. When I say we used A.M. Best
data, sir, what we were using was data that they collect for all companies
reporting to them that wrote business, for example, in the State of New Jersey.
So we did not individually get information from A.M. Best on MIIX or on
Princeton. What we collected was the aggregated data that included all
companies writing medical malpractice data in the State of New Jersey.
ASSEMBLYMAN COHEN: All right. But A.M. Best issues reports
that are also three or four pages long, correct?
MR. HURLEY: Yes, they do. Yes, sir.
ASSEMBLYMAN COHEN: And you can make certain
assumptions from their findings on information that theyíve gathered, correct?
Theyíre a respectful organization, are they not?
MR. HURLEY: I think theyíre recognized as a good organization
that summarizes the data for the insurance company and financial results, yes.
ASSEMBLYMAN COHEN: Okay. And in April 2002, A.M. Best
issues a report that says that MIIX -- the keystone to MIIXís financial problems
was its out-of-state business, where it was being hit strong by losses in
Pennsylvania, Ohio, Texas. Do you recall that? Do you recall that issue?
MR. HURLEY: Actually, I do recall the issue, yes.
ASSEMBLYMAN COHEN: And in black and white, in A.M.
Bestís report in April 2002, it says that the problem with the company and its
rate increases was generated by a loss history sustained out of state. Now, if
youíre going to come in-- I mean, youíre very good at your craft. Iíll give you
that. Thatís very good. But one would think that before you wrote a report in
April 2003, you would have looked at, or someone would have shown you, the
A.M. Best reports, because New Jersey physician premiums in that report, in
that report, were being used to pay the claims created out of state. Itís right in
A.M. Bestís report. It provided us with very easy reading that the losses that
were being sustained, through MIIX, were being paid because of New Jersey
physician premiums, collected in New Jersey.
I suggest that you, if youíre going to continue with this, that you
take a look at the A.M. Best reports after 2002. Iím not sure-- In fact, let me
ask you this. What A.M. Best report did you read?
MR. HURLEY: These are data that are provided, called A.M. Best
ASSEMBLYMAN COHEN: Listen to my question. The A.M. Best
reports -- that is, A.M. Bestís final product -- what was the last A.M. Best report
that you used as part of your report?
MR. HURLEY: May I answer?
ASSEMBLYMAN COHEN: Yes.
MR. HURLEY: Is it okay for me to answer the question?
The A.M. Best report we used was the A.M. Best Executive Data
Service, which provides data summarized for the companies. And let me
address just the question you mentioned. In our analysis, we limited our review,
as far as it related to the MIIX experience, to only its experience in the State of
New Jersey. We did not look at states outside of New Jersey, because it was not
relevant to the study.
ASSEMBLYMAN COHEN: Well, if MIIX were taking money from
MIIX and paying the claims to Texas, isnít that relevant to how their financial
MR. HURLEY: Itís certainly relevant to how their financial
situation is. Iím not telling you that MIIXís problems or the fact that MIIX had
to go into voluntary runoff is a consequence of its New Jersey business. And if
youíve interpreted that as my comment, then I apologize. My comment was,
as it relates to MIIX, is that it went into voluntary runoff because it charged
inadequate premiums relative to the losses that are emerging. It could have been
in Pennsylvania. It could have been in Virginia. It could have been in Texas.
But as far as my analysis and the conclusions Iíve given you from the numeric
standpoint in this report, it is New Jersey-only data. As it relates to MIIX, it is
New Jersey data only, not Pennsylvania, not Texas, and not Florida. But I
would agree with you.
ASSEMBLYMAN COHEN: The money thatís paid out of New
Jersey MIIX -- weíll use that name -- thatís paid out of their funds to go pay a
Pennsylvania or Texas claim, isnít that part of its financial picture in New
Jersey, since itís taking New Jersey physician premiums? And itís right in A.M.
Bestís report in April 2002 -- taking New Jersey physician-collected premiums,
being used to bolster and protect cases in Texas and out of state. Isnít that part
of New Jersey MIIX financial picture? Itís the same checkbook.
MR. HURLEY: I would agree that it is the same checkbook from
which they are writing their claim checks. However, in our analysis and in the
conclusions I have given you, it is irrelevant. The fact of the matter is that the
rate structure that was used in New Jersey is inadequate to meet the loss costs
that are emerging in New Jersey.
ASSEMBLYMAN COHEN: When did that begin? When did the
inadequate pricing begin?
MR. HURLEY: It appears that it would probably have started --
oh, I donít know -- during the late í90s, 1999 or so, something like that. But
the problem, as I mentioned earlier, is that itís difficult to determine that the
rates are inadequate as of that point in time, in part because of the coverage
thatís provided here, which is occurrence-type coverage. Itís very difficult to
identify these turning points in the data.
ASSEMBLYMAN COHEN: Now, whether or not itís going to be
an occurrence or claims made is a decision made by the insurance company
when they offer it to those who wish to be insured, correct?
MR. HURLEY: The company decides what coverage it will provide.
ASSEMBLYMAN COHEN: Correct.
Now, in terms of that, which of those benefits the insurance
company, more so, than the consumer it serves?
MR. HURLEY: Which of what, sir?
ASSEMBLYMAN COHEN: In other words, on an occurrence or
claims-made basis, that they determine what theyíre going to offer to a physician
or anyone else, which of those benefits the insurance company more?
MR. HURLEY: Iíd have to give interpretation to your wordbenefit.
So Iíll use my interpretation--
ASSEMBLYMAN COHEN: Sure.
MR. HURLEY: --and perhaps youíll correct me if I make a mistake
there. Benefit to me would be, itís less risky for the insurance company to write
one coverage form rather than the other. Would that be a correct interpretation?
ASSEMBLYMAN COHEN: Okay. Which would be more
expensive to the one whoís being protected -- occurrence or claims made?
MR. HURLEY: Iím sorry. You changed the words.
ASSEMBLYMAN COHEN: In other words, what Iím trying to get
to, maybe, and Iím not phrasing it exactly correctly--
MR. HURLEY: Okay.
ASSEMBLYMAN COHEN: --but if you have two options, you can
either offer a claims-made policy or an occurrence-based policy, correct?
MR. HURLEY: Yes, those are two options.
ASSEMBLYMAN COHEN: If Iím a consumer, like a doctor or
nurse or a hospital, would I prefer to have it claims made or would I prefer to
have occurrence protection?
MR. HURLEY: It depends on what your criteria for preference are.
If you prefer to pay less, perhaps youíd like a claims-made product. If you
prefer to pay more, you might want an occurrence product. If you prefer--
ASSEMBLYMAN COHEN: Okay. Now, on a claims made -- if
you would pay less on a claims made as a doctor, physician, a nurse, or a
hospital, and you would have to pay less in premiums on a claims made, if the
insurance company only offers occurrence that means that the cost to you is
going to be higher in good times and bad times, correct?
MR. HURLEY: Incrementally higher, yes. It would be higher,
ASSEMBLYMAN COHEN: Now, do you think that those who are
covered should have the option of either picking a claims made or an
MR. HURLEY: I donít know that I have an opinion on whether
they should have an option or not. I think companies are not required to offer
both, so therefore, apparently, we donít think itís appropriate for them to have
a choice. A company decides. Now, if companies in the State of New Jersey are
precluded from writing one form versus another, then youíve made it -- then the
law makes it that way.
ASSEMBLYMAN COHEN: No oneís precluded. But when the --
that which is offered is, of course, determined by the insurance companies. And
the ones that they offer, obviously, are the occurrence, which means that those
who are being protected are going to pay something higher than what it would
be in a claims-made basis, as you just indicated.
MR. HURLEY: But the tradeoff, which I donít think I quite got
out before you asked your next question, is that youíre buying different
protection. Under an occurrence policy, you buy the policy and, forever, any
claim that gets reported is covered by that occurrence policy. Under a
claims-made policy, you buy the policy and only those claims that are reported
during that policy period are covered. So youíre buying a different coverage, and
therefore, the price is correspondingly different.
ASSEMBLYMAN COHEN: Which will -- and the claims made is
less than what the occurrence is?
MR. HURLEY: As generally is the view that the coverage provided
is also less.
ASSEMBLYMAN COHEN: Now, the data that you received from
Princeton and MIIX, in terms of losses, that information -- was there a
breakdown to you in terms of how much represented, letís say, on a jury award,
how much represented noneconomic and how much was economic and medical
and wages? Did you have that background on jury verdicts?
MR. HURLEY: No.
ASSEMBLYMAN COHEN: Did you ask for it?
MR. HURLEY: We discussed whether or not we could get any
breakdowns in terms of noneconomic and economic damages. I believe, and as
is true of most companies, they were not able to provide it. So, no, we didnít
ASSEMBLYMAN COHEN: So on any jury verdict, whether itís
500,000 or 3 million, you donít know how much represented pain and suffering,
MR. HURLEY: That is correct.
ASSEMBLYMAN COHEN: Now, on matters that were settled, on
the information that was provided to you from MIIX and from Princeton, on
the matters that were settled, was there a breakdown provided to you in terms
of pain and suffering -- that is, not economic damages and wages, medical bills?
MR. HURLEY: There was no breakdown of the indemnity
ASSEMBLYMAN COHEN: So you donít know, even in the settled
cases, whether or not the noneconomic represented 3 percent of the settlement
or 80 percent of the settlement?
MR. HURLEY: As is true of most companies, they were not able
to provide that detail, correct.
ASSEMBLYMAN COHEN: Did you ask them for it?
MR. HURLEY: I believe, as I said earlier, we asked for what would
be available in that regard, and we did not even include it in the data request,
I do not believe, because we were told that, as is true in most companiesí case,
was not available.
ASSEMBLYMAN COHEN: Well, in viewing whether or not
noneconomic damages should have a cap, whether itís 250 or a million or 7
million, isnít it important to look at, for purposes of history, exactly how much
is being paid out for noneconomic damages in a settlement or in a trial? I mean,
thatís actual data. Isnít that important in looking at?
MR. HURLEY: I think it would be helpful to have that sort of
breakdown. It is my understanding, from talking to claims people, that thatís
a very difficult thing to get your arms around. And, in fact, when they make
claim payments, itís not clear what portion is noneconomic and what portion
is economic. For example, if a payment is made at policy limits, and they are
presented with information that says the economic damages are 2 million and
we want noneconomic damages of a million, and the policy limit is a million
and thatís the amount they pay, Iím not sure what the portion of economic and
noneconomic damages are. So there are difficulties in getting that information.
There are judgments. Itís somewhat subjective, and companies tend not to keep
that information, unfortunately.
ASSEMBLYMAN COHEN: They donít keep the information.
MR. HURLEY: They donít keep information in the detail of
economic and noneconomic, because they donít know exactly what that is, and
itís very subjective.
ASSEMBLYMAN COHEN: So theyíre devoid of any information
MR. HURLEY: They arenít able to split their data into economic
and noneconomic damages.
ASSEMBLYMAN COHEN: Now, did you look at the jury verdict
sheets on the jury awards?
MR. HURLEY: I do not have any data from jury verdicts that say
this is -- if I understand your question -- the jury verdict on this particular claim,
ASSEMBLYMAN COHEN: Did you ask for it?
MR. HURLEY: No.
ASSEMBLYMAN COHEN: Did they offer to give it to you?
MR. HURLEY: No, they didnít. I didnít feel I needed it.
ASSEMBLYMAN COHEN: You know, on jury verdict awards, it
says, nonec pain and suffering award and economic damages, thereís a check off
as to each count. Were you aware of that?
MR. HURLEY: No.
ASSEMBLYMAN COHEN: Did you speak to any of the defense
attorneys in terms of the jury award verdicts in MIIX and Princeton for the last
couple of years?
MR. HURLEY: No, I have not spoken to the claims defense
attorneys at MIIX or Princeton.
ASSEMBLYMAN COHEN: So that when interest rates go down,
that has an impact on the rate of return that a company may have with
investments. Is that correct?
MR. HURLEY: I believe thatís correct.
ASSEMBLYMAN COHEN: Okay. Anybody who has their
certificate of deposit knows that they were making more money at 8 percent
than they are now at 1.1 percent, correct?
MR. HURLEY: Yes.
ASSEMBLYMAN COHEN: Okay. So can you tell us, on a
percentage basis -- and I know a lot of expert opinion report is trying to draw an
opinion, but it should be based on the factual predicate. What percentage of
our problem in Jersey deals with the interest rates, which have gone from 8 and
9 percent down to 1?
MR. HURLEY: Iíd have to do a calculation that reflected that
order of gap, but I think, in our report, we provided you an assessment or a
rough estimate of what the impact would be. For example, going from 6.5
percent interest down to, roughly, 4 percent interest, and we said that in rough
terms that was probably somewhere between 10 and 15 percent of rate level.
So dropping the interest rate assumption by 250 basis points, from 6.5 to 4 we
(indiscernible) something between 10 and 15 points of rate level, given the
payout pattern that exists in New Jersey.
ASSEMBLYMAN COHEN: All right. But what percentage of an
impact on what the rates would be -- 15 percent, 20 percent, 30 percent -- on
interest rates dropping 250 basis points?
MR. HURLEY: I think, I just--
ASSEMBLYMAN COHEN: Fifteen percent.
MR. HURLEY: Between 10 and 15 percent. I think the actual
number was 11 percent.
ASSEMBLYMAN COHEN: Did they give you computer-driver
data, MIIX and Princeton, or did they give you hard copy files?
MR. HURLEY: It was electronic information.
ASSEMBLYMAN COHEN: They had this information on a
computer, that youíre aware of?
MR. HURLEY: The data they provided to us was on -- in electronic
form. So, I mean, I donít know what their data system issues are. I just know
they provided us information in electronic form.
ASSEMBLYMAN COHEN: Are you aware, or did you take into
consideration, that by virtue of -- and Iím going back to the A.M. Best reports --
that by virtue of out-of-state losses, paid for out of the New Jersey checkbook,
that as a result of that, there had to be rate increases to make up for those losses
out of state. Is that correct?
MR. HURLEY: I cannot speak to what impact their out-of-state--
I assume weíre talking about MIIX, first of all?
ASSEMBLYMAN COHEN: Correct.
MR. HURLEY: I cannot speak to what decisions and what rate
changes were implemented by MIIX in New Jersey as a consequence of its losses
from out-of-state business. I cannot speak to that question.
ASSEMBLYMAN COHEN: Now, an insurance company, as we
understand, obviously as it gets more claims in and sustains more losses, unless
it has tremendous investments, either in the bond market or elsewhere -- right
now, nobody does -- the only thing that an insurance company can do to make
up for those losses is adjust the rates upward to recapture revenue. Is that
MR. HURLEY: I would disagree with your characterization.
ASSEMBLYMAN COHEN: Would you disagree with the premise
that if my losses are larger, Iím going to have to increase rates somewhat and
make up for those losses so I can stay in business?
MR. HURLEY: I disagree with that.
ASSEMBLYMAN COHEN: You disagree?
MR. HURLEY: Yes. Because, as I said--
ASSEMBLYMAN COHEN: So one would not increase premiums
if they were sustaining losses?
MR. HURLEY: Could I amplify?
ASSEMBLYMAN COHEN: Sure.
MR. HURLEY: As I mentioned earlier, the way rates are
determined, you learn from the loss experience that you had historically, but you
do not get to recoup, which is my interpretation of your comment. Your
comment suggests that somehow, if I lose money last year, Iím going to adjust
my rates this year to make up for that. Thatís not what happens. What
happens is you interpret the loss experience that you had in prior years, you
adjust it so that you make an estimate of what the losses are youíre going to
have for next year, on a loss cost basis, and then determine what rates you need
to charge for the coverage youíre going to be providing in the next year. You do
not recoup for the losses you had for prior years, which was my interpretation
of your characterization, which is why I said that. I apologize.
ASSEMBLYMAN COHEN: You referenced National Practitioner
Data Bank and other national information in your report. You used out-of-state
data, also, to look at issues in New Jersey?
MR. HURLEY: There certainly was some countrywide data that we
used in our study.
ASSEMBLYMAN COHEN: Which countrywide data, if you can
MR. HURLEY: I believe it was, some A.M. Best data was used in
the early part of the discussion to look at the long-term trends over the í75
through 2000 period, or something like that. Thatís my only recollection of outof-
state data. It was not used directly in the conclusions I mentioned earlier.
ASSEMBLYMAN COHEN: Did you measure the jury awards and
settlement awards over the last five or six years in Jersey?
MR. HURLEY: We looked at severity of claims implied by the
payments that were made by these companies over the last five or six years, yes.
ASSEMBLYMAN COHEN: Iím not sure if that did or did not
MR. HURLEY: I thought it did. I think the answer is--
ASSEMBLYMAN COHEN: Letís try it again. Letís try it again,
either for my benefit or for your benefit. But over the last five years, in
reviewing the information from, letís say, MIIX, did you review the payout
claims on all settlements and all jury awards?
MR. HURLEY: I believe if you-- We received payout information
from MIIX and from Princeton and--
ASSEMBLYMAN COHEN: How was the payout information from
MIIX provided to you? In what form?
MR. HURLEY: I believe it was--
ASSEMBLYMAN COHEN: Was it a list of 800 settlements, or
was it a gross amount?
MR. HURLEY: I believe it was aggregated into coverage year, what
we call coverage year detail, either by accident year or report year, is my
recollection. And in ExhibitC of our report, we summarized, on a report-year
basis, what the severity of claims had been for those companies, based on that
ASSEMBLYMAN COHEN: All right. So letís take that so that I
know that my question has been answered, or the best that you can do it. What
you were presented with was, for each of those years, MIIX paid out $50
million in claims that year. Is that basically it?
MR. HURLEY: Not exactly. It was in more detail than that. It
was by -- I think it gave us accident year, report year, summarizations of the
data. And we may, actually, have had some more detailed data. I just donít
recollect it off the top of my head.
ASSEMBLYMAN COHEN: But what you were provided with was
a gross number? It didnít say, like AOCís report, which is, "These are the 800
cases MIIX had in 2002 that paid out." This was the amount paid out in
settlements, this was the amount paid out in jury awards. You did not have that
MR. HURLEY: I donít think we got it in individual claim detail,
but we got summarizations by, what I call, either calendar period or coverage
ASSEMBLYMAN COHEN: So, summarization, so that I
understand it, is a gross amount, whether--
MR. HURLEY: Itís an amount that would have--
ASSEMBLYMAN COHEN: --itís 10 million or 5 million. Thatís
the amount that you got. You got no breakdown?
MR. HURLEY: That is true in one sense of the data. I think we
did get something. Iíd have to look back and refresh my memory on the exact
detail of the data to answer correctly. But I think we did get some detail about
the individual claim detail, but I donít recollect that.
ASSEMBLYMAN COHEN: And that would have been for all
those years, correct?
MR. HURLEY: It would have been for, roughly, the last 10 years.
ASSEMBLYMAN COHEN: What was the date that you went up
to, in terms of the information provided by MIIX and Princeton?
MR. HURLEY: I believe it was through the latter part of 2002, but
not quite through December 31, 2002.
ASSEMBLYMAN COHEN: Okay.
ASSEMBLYWOMAN WEINBERG: Just before you do -- I have
a couple of questions.
To understand, when you said the insurance company, based on the
data given to you, paid out $1.36 for every dollar collected. Is that -- did I write
that down right?
MR. HURLEY: Yes, you did.
ASSEMBLYWOMAN WEINBERG: Okay.
Does that $1.36 -- is that only for New Jersey claims, or did it
include, as my colleague said, the out-of-state claims to other states?
MR. HURLEY: No. That was only New Jersey data, only New
Jersey experience. It did not include out of state.
ASSEMBLYWOMAN WEINBERG: Now, you also said that there
was no breakdown of the economic versus noneconomic?
MR. HURLEY: I did say that, yes.
ASSEMBLYWOMAN WEINBERG: Does an insurance company
usually keep that?
MR. HURLEY: No, it doesnít. It generally doesnít have it,
unfortunately. It may be able to get it, as it was mentioned, in situations where
thereís a jury verdict, if it actually retains that information. But because most
of the claims are settled rather than tried to verdict, it would be, as I mentioned
earlier, a very subjective exercise to try and keep track of that information, and
they generally donít.
ASSEMBLYWOMAN WEINBERG: So we canít really say that
this increase was due to pain and suffering. It could have been due to economic
MR. HURLEY: That is correct. That is correct.
ASSEMBLYWOMAN WEINBERG: And there is nothing in here
that could either prove or disprove that?
MR. HURLEY: There is no data in here that would distinguish
between economic and noneconomic-- No, itís combined together, and I do not
have the ability to separate it, with the information available.
ASSEMBLYWOMAN WEINBERG: So how would an insurance
company then decide to lower their-- If this information isnít even available to
them -- and Iím a layperson at this obviously -- how would they decide to lower
their rates if there was some kind of cap on noneconomic damages, if they donít
even know what percentage of what theyíre paying out is actually for economic
MR. HURLEY: That is a difficult decision for an insurance
company to make. Their expectation would be that the loss costs, if they were
to do such a thing, their expectation would be that the loss costs would be
reduced as a consequence of the implementation of the noneconomic cap, and
it would be based on some judgments or some assumptions about what the
impact of that would be, if they were actually to prospectively reduce the rates.
Hence, part of our observation is that you need to wait until you see what the
loss data shows and let the rates respond to the loss data. Itís very difficult to
make these assessments because, as you correctly noted, the data is not
available to do it in an explicit, quantitative way.
ASSEMBLYWOMAN WEINBERG: Okay. All right.
ASSEMBLYMAN CONAWAY: Just following on the
Chairwomanís comments, the analysis was based on loss data, and that is a
global number. Now, perhaps, for the sake of our study, which I think is
redundant, on this question of noneconomic damages of impact, perhaps we
ought to require them to keep this data so that we can figure out what these
impacts are, going forward. But at the end of the day, theyíre making decisions
based on loss data, and that is aggregated. What seems to me that we do know,
that if we take steps to reduce that loss data in the form of a cap -- I think if I
understand all of your testimony taken as a whole -- that we would, looked in
isolation, expect to see some reduction in premium. Now that reduction in
premium might be swamped out by poor rate premium, going in the past; poor
rate structure; and a number of other factors. But the point that Iím not quite
understanding, and some of the questions Iím just hearing, is, youíre talking
about and youíre analysis is based only in New Jersey. It is based on loss data
only, and we know that if we decrease the losses to the insurance companies,
thatís going to have -- that, well, it may not be the whole determining factor on
what our rates will be. It should have an impact which would serve to reduce
the rates that they have to charge to physicians. Isnít that right?
MR. HURLEY: Yes, over the long term, reducing losses will reduce
ASSEMBLYWOMAN WEINBERG: Assemblyman DíAmato.
ASSEMBLYMAN DíAMATO: Thank you, Madam Chairperson.
In June of 2002, this distinguished body took testimony, and the
chairperson and chief executive officer of MIIX testified here. There was some
dialogue that I had forgotten about, but I think itís very, very important to share
this with you. Assemblyman Impreveduto and the CEO of MIIX had the
following to say. Iím going to quote this:
"There are several parts of the story of MIIX. MIIX was founded
in 1977 as part of a malpractice crisis. We operated as a New Jersey company
until 1991, at which point we began to write coverage in Pennsylvania. In the
mid-í90s, we began to move outside New Jersey and Pennsylvania to write in
approximately 25 additional states." This CEO says, "For MIIXís 25-year
history, we have done very well in New Jersey. We have always been at a
profitable business plan in New Jersey." The Assemblyman says, "So, in 1991,
when you were in New Jersey only, you were making a lot of money." She says,
"I donít know about a lot of money, but we were always a profitable company."
The Assemblyman -- and Iím almost finished -- "So it would seem to me that
when you began to expand out of New Jersey your problems began." And here
is her response: "New Jersey is a volatile environment, but clearly not as volatile
as markets outside New Jersey. The tort reform that was put in place in the
mid-í90s has served us well. Weíve seen a decrease in the frequency of cases.
Itís a market where we believe we defend cases very successfully."
Sir, you have the CEO of MIIX saying that for the 25-year history,
up until she testified here, that it was a profitable company, but the problem
was they went outside of New Jersey, as was explained to you in the dialogue
between you and Assemblyman Cohen. Isnít that something, when you have
the CEO of MIIX saying we were good in New Jersey? We made a mistake.
We went into 25 other jurisdictions. Because they made that mistake, we ought
to have caps in this state?
MR. HURLEY: Is that a question to me?
ASSEMBLYMAN DíAMATO: Yes.
MR. HURLEY: Could you state the question so I can understand
ASSEMBLYMAN DíAMATO: You know what, Iíll withdraw the
Thank you, Madam Chairperson.
MR. CANTOR: Madam Chairwoman?
ASSEMBLYWOMAN WEINBERG: Yes.
MR. CANTOR: I did have a few statements, on the part of the
Medical Society, on the issue of subsidies, if you want me to just go through
those right now.
ASSEMBLYWOMAN WEINBERG: Sure.
Go ahead, Mr. Cantor.
MR. CANTOR: Again, I know the day is late, so I will just keep
it short. One, first of all, there are a number of doctors who would have liked
to have been here today, but unfortunately, as I think you know by now, our
annual conference is going on. So we apologize that we could not be here -- our
leadership could not be here.
The doctors of MSNJ are very thankful that you are taking this
issue seriously, and I think the fact that you are proposing subsidies show that
you recognize itís a problem and that there are a number of physicians who are
really hurting and need relief. The Medical Society of New Jersey would support
subsidies being given to doctors. However, we do not support a short-term
bandage approach of subsidies in lieu of the long-term fix to the liability
problem. Now, we believe that a comprehensive system that is contained in the
Senate version of A-50 is the best way to go right now.
Again, we would support subsidies, but could not in lieu of. And
let me speak, specifically, to the subsidy which I think is being proposed here
today. It is very difficult, because we donít have the language before us. But
itís my understanding that what youíre doing is taking the funding mechanism
of the current Senate version of A-50 and merging it into the A-50 bill that
passed initially, but changing the loans into a subsidy program. If I have that
right, I think-- I donít have it right?
ASSEMBLYWOMAN WEINBERG: We have not -- I think I
explained at the beginning -- we have not officially received the Senate version
of A-50, because our--
MR. CANTOR: No, Iím not saying that youíve done it. Iím saying
that the concept that I think weíre talking on today is, basically, I think, the
language of A-50, as it passed this House, using the funding mechanism of the
existing Senate version.
ASSEMBLYWOMAN WEINBERG: Correct. Correct.
MR. CANTOR: A few points on that. It was mentioned before
that you were looking to raise $30 million per year for the subsidy. Itís my
understanding, in talking to the Senate staff, that they were really looking to
raise between $20 and $25 million to do that, and thatís before any
administrative costs are taken out in order to run any type of program. So we
donít think, in the first instance, you are going to raise the type of money that
youíre looking for.
Next, under the language of that proposal, itís very uncertain which
doctors will be getting any subsidies or any assistance at all. Youíre talking
about leaving the (indiscernible) to determine where you may have geographical
limitations, where you may have doctors who can no longer practice, and certain
value judgments being made, which Iím not sure if the Department is going to
be competent to make those determinations.
I believe we heard from Commissioner Lacy, at one point in time,
that, if you were going to do a subsidy idea, that all doctors should be able to
get the benefit of that subsidy, not just a select few based on criteria which,
again, weíre not sure how itís going to apply.
We also think there are two fundamental flaws with the subsidy
idea. One, I think thereís a belief that thereís only a certain limit or amount of
physicians who are really being impacted. However, itís not just an OB
problem, not just a neurosurgeon problem. This is a problem that is filtering
down to all doctors in the state -- obviously, some worse now than others, but
itís creeping up. If you go talk to any surgeon in the state right now -- not
neurosurgeons, any general surgeon in the state -- they are seeing their premiums
increase substantially, and as Mr. Hurley mentioned, the rate increases are only
I believe, this year alone, Princeton Insurance imposed a 25 percent
rate increase January 1; I think another 18 percent rate increase on April 1.
Surgeons are being hit substantially in the state, and no amount of subsidy that
youíre going to have is going to be able to help them. Even the family
practitioner, who may see only a $10,000 increase in their premium -- which we
may think is not a big deal, but really, practitioners and pediatricians do not
make enormous sums of money -- theyíre maybe making $90 or $100,000 a
year. And I would suggest to you that a $10,000 increase on your operating
costs, when youíre only making 100,000 a year, and you have your other bills
and your college loans, is a substantial hardship even on those family
Again, and the other problem with the theory is that thereís an
assumption that this problem is cyclical and, in a couple of years from now, the
economy will turn around and that this problem will go away. Therefore, we
only need this for three, four -- I believe I heard five years today. I believe, if
you listened to Mr. Hurleyís testimony today and if you read his report, that
this is not a problem thatís going around. The trend increases began in 1997,
when the economy was good. Theyíre continuing now, and thereís no indication
that, unless the Legislature acts, that thereís going to be anything to change the
losses that companies are experiencing into the future.
So, while we may support a subsidy to help some physicians right
now, we believe itís not a solution for a long-term problem. If you want to do
both, to help out those physicians now, into the future, we would appreciate
that. But what doctors in New Jersey are really looking for is a long-term
solution, because they want to practice their careers in New Jersey. They want
to take care of their patients into the future. We believe we need a long-term
ASSEMBLYWOMAN WEINBERG: Thank you very much, Mr.
Hurley. Thank you for your time and patience here today.
The last on my prior sign-up list -- and just a word. I know, and
I see Clark Martin standing there, that it was not convenient for the Medical
Society today, since your annual meeting is being held, and I appreciate your
coming here in spite of those other pressing obligations.
The Trial Lawyers Association.
B R U C E S T E R N: Good afternoon, Madam Chairwoman Weinberg,
Chairman Cohen, and members of this Committee. My name is Bruce Stern,
and I am the President of ATLA New Jersey. Iíd like to thank you once again
for the opportunity to testify here this afternoon, as you work to provide
medical malpractice insurance assistance for New Jersey physicians.
As you know, debate has been raging in New Jersey and around the
country for more than a year now about how to best address the problem within
the medical community due to the increasing costs of medical malpractice
insurance. We fully appreciate the work, energy, and attention that has been
paid to this issue by legislative leaders and the members of the Banking and
Insurance, and Health and Human Service Committees.
We support the plan to provide immediate, meaningful, financial
support to the physicians who are experiencing cost increases in their medical
malpractice premiums that endanger their ability to maintain a medical practice.
The subsidy plan developed by the Assembly, and discussed this morning by
Majority Leader Roberts, is an immediate solution to an immediate problem.
When compared to the cap gap cap fund option, the subsidy plan is a far
superior way to address this cyclical problem, which is driven by economic
considerations outside the control of State government. More importantly, this
approach does not harm victims, as it strives to help doctors.
With all respect to Dr. Lomazow, this bill passed by the Senate is
a cap. It is a $300,000 cap on doctorsí liability. There is a $700,000ís worth
of a fund, a cap gap fund, but for every dollar recovered on economic losses,
that fund gets reduced a dollar by dollar. So that if a jury returned a verdict of
a million and half dollars in pain and suffering, disability and impairment, loss
of enjoyment of life, all that could be recovered by the injured plaintiff was $1
million. This bill is a cap.
Secondly, Dr. Lomazow mentioned that if we have a cap in New
Jersey that is higher than the cap being proposed under the Federal legislation,
somehow citizens in New Jersey will be protected. That is wrong. The bill
thatís before the United States Senate is a bill that would preempt all state law.
And if that bill were to pass, there would then be a $250,000 cap.
There are many unknown and unanswerable questions surrounding
the creation of a cap gap cap fund that not only limits the liability of the
physician who has committed an act of malpractice, but also limits the financial
recovery of the injured patient. How much money will the fund need to cover?
Who will administer the fund? Will lawyers be needed to defend the fund?
How will future dollars be raised if the fund is depleted? If the fund only
applies to jury verdicts, how will any cases ever be settled? Will this turn into
another failed attempt by State government to run an insurance company?
Remember the JUA and MTF disasters.
Responsible professionals on all sides of this issue have admitted,
at some point in these discussions, that the problems of high insurance rates will
not be solved by any cap on the damages victims seek. Rather, the problem will
be solved by reducing medical errors. Stop the injuries and you will stop the
lawsuits. Honest disclosure of medical errors to the patient -- tell the patient
what happened to them, as required by the AMA ethics. Impose some
regulatory control of the medical malpractice insurance carriers. Appropriate
changes to tort law that encourage timely resolution of a case--
For the past year, Dr. Rigolosi and the Medical Society has
continually misrepresented the facts, and threatened and extorted this body to
destroy the civil justice system here in New Jersey. When this debate began a
year ago, the Medical Society alleged that the problem was due to excessive
verdicts. When the Administrative Office of the Courts dispelled that argument,
the rhetoric changed.
Just yesterday, in an Associated Press story, John Shaffer,
spokesman for the Medical Society, admitted that the Medical Societyís claims
of excessive verdicts was wrong. But now the Medical Society claims that since
verdicts are only averaging under a million dollars, well then, caps wonít hurt
patients that much. Weíve gone from: Verdicts were way too excessive to, now,
verdicts are so small why not enact a cap, no one will be hurt.
Speaker Sires, Majority Leader Roberts, Committee Chairman
Cohen have recommended legislation to subsidize the high medical malpractice
premiums of those high-risk specialties, which have been especially hit and hurt
by the medical malpractice insurance companies. These proposals would put,
in some cases, over $40,000 in tax-free moneys in the pockets of the
obstetricians, neurosurgeons, and other high-risk specialists. Yet, the Medical
Society has said no to this proposal. Instead, the Medical Society continues to
clamor for caps on noneconomic damages and seeks immunity from
responsibility and accountability for its membersí cause.
Dr. Williams, who testified here this morning, is proof that a
subsidy would work. Letís recall what her testimony was this morning. She
testified that, previously, she paid $30,000 in medical malpractice premiums.
Now she pays $50,000, without the ability to deliver babies. She testified that
her malpractice premiums would be $72,000 if she were to deliver babies. Now,
according to the report that Mr. Hurley presented, the first report, his study
found that if you enacted caps, perhaps there would be a 5 percent savings in
premiums. So, if we take Dr. Williams quote of $72,000, you enacted caps,
there would be a reduction, maybe, of 5 percent. So her premiums would go
down to $69,000. Not very much help for Dr. Williams. Certainly getting a
$3,000 reduction on her premium is not going to be the item thatís going to let
her practice and deliver children.
However, under Majority Leader Robertsís subsidy program, under
the formula that had been expressed before, in which she would be reimbursed
one-half of the increase, if you look at her premium quote of 72,000, her
previous premium was $30,000. Therefore, the different is 42,000. She would
receive a $21,000 tax-free subsidy. You subtract the $21,000 subsidy from her
$72,000 quote and, all of a sudden, sheís only paying, out of her pocket,
$50,000. The same $50,000 sheís paying today, but sheíd have the ability to
deliver children in Mercer County, under the subsidy program, that sheís not
able to do now and she wonít be able to do under a cap.
Recently, before the Senate Health Committee, Paul Anzano,
counsel to ProMutual Insurance Company, one of New Jerseyís medical
malpractice insurance companies, testified and recognized that the medical
malpractice insurance problem was a cyclical and short-term one, requiring a
short-term solution. So why then is the Medical Society against legislation
which would subsidize its members? Is it the fact that the Medical Society of
New Jersey is the third largest shareholder of MIIX and will reap millions of
dollars in profits if the compensation to injured people is drastically reduced?
Is it the fact that the Medical Societyís officers sit on the board of MIIX and
that the Medical Society representatives, also, are large shareholders of MIIX?
Why was it, when Neal Weissfeld (phonetic spelling), Deputy Executive
Director of the Medical Society of New Jersey, issued a report condemning the
conflict of interest between the Medical Society and MIIX, he was summarily
fired and escorted out of the building, jointly occupied by MIIX and the
Medical Society, by guards?
Six months ago, this Joint Committee requested, in writing,
documentations and statistics from New Jerseyís medical malpractice insurance
companies. Yet, isnít it interesting that these same insurance companies, MIIX
and Princeton, which have refused to comply with your written request,
voluntarily provided data to Mr. Hurley and his company, who is retained by
the Medical Society? How is it and why is it that Princeton Insurance
Company and MIIX are permitted to snub their noses at this Committee and
yet voluntarily comply with the request of the Medical Society to provide its
actuarial firm with the same data requested here? Isnít it interesting that the
Medical Society brings in an actuarial person?
Thatís like, if somebody brought into court an expert who never saw
the patient, but just did a paper review. Why didnít they bring in MIIX to give
you the real data? Theyíre the third largest shareholder. They own 821,000
shares of MIIX, and yet they donít bring MIIX here to testify before you.
Fortunately, here this afternoon is a former Vice President of MIIX, who will be
more than happy to supply you with the information you requested, not hearsay
information -- firsthand information.
Also interesting is that Mr. Hurley didnít take in the compensation
package paid by MIIX, a company that has gone into insolvent runoff, a
company that pays its CEO $750,000 a year, according to it prospectus, and
plans to pay her more money next year. Unfortunately, A-50 as amended by the
Senate, fails to address or provide any solution to the medical malpractice
insurance problem here in New Jersey. Nothing in this legislation will cause
medical malpractice premiums to drop. A-50 provides no financial assistance
to New Jerseyís physicians and hospitals. Rather, it makes injured patients bear
the responsibility for the medical malpractice caused by physicians and medical
According to the Institute of Medicine, over 98,000 people a year
are killed as a result of preventable medical errors. Thatís one jumbo jet crash
every other day. The legislation passed by the Senate utterly fails to address this
public epidemic. The bill drastically changes the statute of limitations in
medical negligence cases, which will have a dramatic effect on children, women,
and the elderly. And yet, this legislation does nothing to address the ethical
requirement that physicians notify their patients when a preventable medical
error has occurred.
Dr. Lacy, New Jersey Commission of Health, has testified that it is
ethically and morally wrong for a physician to fail to notify a patient that a
preventable medical error has occurred. Even more distressing is the failure of
this legislation to address the real cause of this short-term problem, the medical
insurance companies themselves.
Over a year ago, Patricia Costante, CEO of MIIX, appeared and
gave testimony. She appeared only because MIIX needed government dollars
in order to stay afloat and to start up MIIX Advantage. Since that day, she has
never returned. Despite all of the hearings before these Joint Committees and
the Senate Committees addressing medical negligence, not once has an insurance
company, other than Mr. Anzano, ever appeared.
William McDonough, CEO of Princeton, was willing to talk to
Money magazine, but not to this Committee.The Star-Ledger, The Bergen Record,
theAsbury Park Press, the Courier-Post, the Trenton Times, The Press of Atlantic
City, and other leading editorial boards have written editorials denouncing this
legislation. They have called upon this Committee to investigate medical
malpractice carriers and obtain the data before you take any action. We have
demonstrated that the civil justice system is not the cause of the arbitrary rise
in medical malpractice premiums. Weíve been honest and straightforward in
providing you with the facts.
Donald J. Palmisano, the President-Elect of the American Medical
Association, testified, "People who cause harm should be held accountable."
Dr. Palmisano gave that testimony before the United States Congress when the
AMA urged Congress to enact legislation to hold HMOs accountable for the
medical harm caused to patients due to HMOsí bad business decisions. People
who cause harm must be held accountable, whether itís the person who runs the
red light, a company which manufactures a defective product, or a physician
who commits a medical error.
A-50, as passed by the Senate, is a flawed piece of legislation. It
fails to address the real cause of medical malpractice and the real cause for the
arbitrary rise in medical malpractice premiums. On behalf of ATLA New Jersey,
we oppose that bill. We support the plan to provide immediate, meaningful
financial support to the physicians who are experiencing cost increases in their
malpractice premiums that endanger their ability to maintain a medical practice.
We applaud the efforts of Speaker Sires and Majority Leader Roberts to balance
the interests of the parties involved in this debate. More importantly, we
applaud their stand on behalf of the injured patients in New Jersey.
ASSEMBLYMAN COHEN: Thank you very much.
Any questions from the Committee? (no response)
Thank you very much.
MR. STERN: Thank you very much.
ASSEMBLYMAN COHEN: Is Mr. Weiss present?
H O W A R D W E I S S: Thank you.
ASSEMBLYMAN COHEN: Thank you.
MR. WEISS: Iíd like to give you a little background. I was one of
a team of healthcare consultants that helped form MIIX in late 1976 and early
1977. I stayed on with MIIX as a consultant until October 1978, and I joined
them as a Vice President and was subsequently promoted to Senior Vice
President. I left MIIX in January of 1992. My responsibilities included
legislative affairs, particularly the passage of tort reform, actuarial statistical
analysis, information services, and general troubleshooting.
The tort reform effort that we undertook at that time had about
eight different proposals, including collateral source and joint and civil liability,
a $250,000 cap on pain and suffering, revising the statute of limitations, among
others. We were successful in enacting an offset for collateral sources and a
revised doctrine of joint and civil liability. Those were the two elements of the
package that, as data showed, would have the biggest impact on losses. The rest
of the package was "window dressing."
ASSEMBLYMAN COHEN: When was this?
MR. WEISS: We passed this in 1986, and it was signed by
Governor Kean, I believe, in January of 1987.
At that time, my data had shown that a $250,000 cap on
noneconomic damages, if it had been enacted -- we would not have been able
to cut premiums one dime. The overwhelming majority of indemnity dollars on
settlements is for real economic loss, for past and future medical care, past and
future lost income, past and future custodial care, renovations for homes for
people who are handicapped, and other economic loss. In essence, I can tell
you that in the majority of cases settled by MIIX, the settlement doesnít even
cover for economic loss.
The medical communities claim that 70 percent, or 75 percent, of
dollars paid are for noneconomic loss is really ludicrous. They donít have any
data to make that claim, and I can tell you firsthand they donít, because Iím the
one who designed their data system. Iím the one that included in their data
system places to put how much of the settlement was for past medical bills, how
much was for future medical bills, how much was for past lost wages, how much
are for future lost wages, and so forth, and so on. So we had a category for
every economic component of the loss. It was decided that it was too
burdensome and too cumbersome to input this data into the system, so it was
Iíve been in medical malpractice now since 1976, and Iím still in
it, in terms of evaluating medical malpractice claims. If I was forced to make
a bet, I would bet that not 10 percent of dollars paid in indemnity is for
noneconomic loss. Another part of the window dressing was a revision to the
statute of limitations for minors. We had proposed cutting the statutes of
limitations from age 20 to age 11. That also wouldnít have saved a dime. The
overwhelming majority of dollars paid out on pediatric claims or for
neurologically impaired infants -- the overwhelming majority of those claims are
filed within three years of the birth of the child. The parents, basically, recognize
when the child is not rolling over, when the eyes are not tracking, when theyíre
not walking when theyíre supposed to, theyíre not speaking when theyíre
supposed to. And certainly, the ones that are filed after that are certainly filed
once the kid starts going to school and learning disabilities are uncovered in
kindergarten, in Grades 1, 2, 3.
The only thing that revising the statute of limitations will do is to
keep those kids -- whose parents decided not to file an action -- when they reach
the ages of 16, 17, 18, and 19 years old, and they decide that they want to look
into whatís causing their disability -- it would deny them a cause of action.
Also, my 27 years experience in medical malpractice has taught me that
frivolous claims is not even a small problem for medical malpractice insurers.
It is virtually an unexisting problem. And I think itís important to make a
distinction between an unmeritorious claim and a frivolous claim.
A person who has an encounter with the healthcare system that has
an untoward event has the right, if they so choose, to investigate why that event
happened. Itís called a discovery process. Once that discovery is finished and
they decide that, "Gee, there wasnít a real -- no malpractice," most of those
cases are dropped. And I can give you some real and accurate statistics. I have
a company that evaluates claims for plaintiffsí attorneys. Weíve been doing it
for 11 years. Weíve evaluated 3,576 claims for 600 law firms in 32 states. Out
of those 3,576 claims, our clients have proceeded with only 610 -- only 17
percent. Eighty-three percent, or 2,966, of those claims were dropped after the
Itís important to also understand that in about 750 of the 2,966
that were dropped, it was our judgment that there was negligence on behalf of
the healthcare provider, but there wasnít sufficient cause in terms of damages or
there werenít sufficient damages to make it economically feasible to continue
with those claims. So even though it was determined that, 750 of those claims,
there was negligence, our clients didnít proceed with them.
Statistics were gathered from a prestigious south Jersey law firm over
a 19-month period, where 323 individuals had walked into their office saying,
"Iíve been harmed by some healthcare provider." At the time of the study, they
had only accepted 12 as clients. Frivolous cases, on the other hand, would
encompass those cases in which there were no real injury.
During my time with MIIX, which was from 1977 through 1991,
the number of truly frivolous cases -- ones in which there was no untoward
medical outcome -- was minuscule and didnít put any financial burden on the
company. MIIX was formed in combination by the Medical Society and
Osteopathic Association. It was formed as a reciprocal insurance company, and
hence, had a board of governors. It was run by an attorney, in fact, that had a
board of directors. Both these boards were "stacked" with physicians who also
served on the Board of the Medical Society and the Osteopathic Association, or
otherwise politically connected with these organizations. Far and away, the
Medical Society had the most representation.
As such, MIIX was always governed with an eye toward what was
good for the Medical Society. Premium discounts were given for being a
member of the Medical Society, even though there was no data to suggest that
such membership reduced the doctorís risk. This was done to encourage doctors
to join the Medical Society. In essence, premium dollars were used to subsidize
Medical Society membership dues. Outlandish perks were given to board
members, including million-dollar life insurance policies.
In the late í80s and early í90s, after Peter Sweetland (phonetic
spelling), the President of MIIX, passed away, MIIX hired Dan Goldberg as
President. He changed MIIXís philosophy. Up until that time, MIIXís mission
was to assure that the doctors in New Jersey would never be without a
reasonably priced market for medical malpractice insurance, and hence, one of
fiscal responsibility. Dan Goldbergís idea of success was measured in market
share. The more insureds the better, even at an inadequate premium rate. The
expansion into other states was undertaken with the idea to write as many
insured as possible, regardless of whether they were reasonable risks or whether
the pricing was adequate. I personally saw Dan Goldberg offer a large reduction
in premium to a large group after Princeton had quoted them a large renewal
premium increase based on their experience. The difference in premium was
over 50 percent.
I would not leave today without discussing several proposals that
could help cut losses and lead to premium stability and even reduction. The
first issue relates to the State Insurance Department, which is supposed to
monitor rates and make sure that rates are adequate. And Iím going to go a
little bit into what the actuary said and respond to some of the things he said.
New Jersey, for medical malpractice, is a use and file state. You make a rate,
and you use it, you file it with the Insurance Department. In the meantime, itís
being used. I donít really know how much time it takes the Insurance
Department to get around to looking at the rate filing and making some
determination as to whether itís reasonable or not, but all this time the rate is
Premiums for medical malpractice are made by trending individual
factors, such as the number of claims that are expected, what percentage of these
claims will end up with a payment, what will the average payment be, how
many will require extensive defense costs, what will the average defense cost be,
and what will be our average investment return over the 15 to 18 years that
weíre going to hold all or part of this money?
The actuary indicated, and people seem to be interested in the fact
that, the loss ratio was 136 percent. In other words, they paid out $1.36 for
every premium dollar they collected. Thatís the way rates are made. Itís made
that way purposely, because if they didnít make it that way, then theyíd make
unconscionable profits. Because over the 15 to 18 years that theyíre holding the
money, theyíre going to make 70 or 80 or 90 percent of investment income. So
what they do when the rate is made is, they make a loss ratio of 130 to 135 to
140 percent, versus premium, expecting that if they collected 100 million in
premium, theyíre going to end up paying out 140 million. But in the meantime,
theyíre going to make 80 or 90 million of investment income, and therefore,
make a 30 percent profit.
One of the factors that are trended is severity. Severity that -- and
that means, what was the average payout on a paid claim? And the actuary
said, "Well, severity is trending up." Well, you canít take that figure in a
vacuum because severity trends up -- it may be trending up or it may not be
trending up, based on individual factors. If this year the average case was
250,000 and next year itís 300,000, okay, you really have to look at why. If the
250,000 severity was based on a caseload where you had severity of injuries one
through nine being: one, emotional injury only; two, three, four, and five,
temporary injuries; six, seven, eight, and nine, various degrees of permanent
injury -- nine being death, eight being quadriplegia, coma, seven being
paraplegia, and so forth. If the 250,000 severity was because I had an even
number of all of these injuries -- one, two, three, four, five, six, seven, eight, and
nine -- but the 300,000 was because that particular year I had only one one and
eight eights, eight quadriplegia cases, then naturally the severity is going to go
What you have to do is, you have to look at severity in terms of the
severity of injury. In addition, severity is going to go up because economic costs
go up. As wages go up, the lost wages component goes up. As medical costs go
up, the economic portion for medical bills goes up. In addition, the actuaries
that work for the insurance companies, or work for me, were "independent
actuaries." They werenít on our staff. They were independent. But
independent actuaries arenít so independent. Because if they donít do what you
want, you go out and find somebody who does.
When they trend each factor that goes into making up the rate,
since thereís such a long-tail line of insurance, they tend to be conservative and
put some, what we used to call, "fat" into the rate. And they do it for a number
of claims, and they do it for the severity of the claims, and they do it for how
many youíre going to have -- expenses, and how what that expense is going to
be. And in the end, if you put a little fat here and little fat here and little fat
here and little fat there, what you end up is -- you end up with a rate thatís 7
percent higher than itís supposed to be. And if you do that year after year after
year, it gets compounded.
In addition, actuaries are funny people in a way, in the sense that
theyíre conservative, in that they-- When they see something -- a factor -- go up,
it increases, they basically say itís a trend. When they see it decrease, they
basically look at it almost as a aberration, and they say, "Well, itís got to
decrease more than once for me to take it into account as a trend." So what
happens is, you have fat built into the factors. You then have this trending,
which is not -- is trending of increases in these factors that donít fully take into
account decreases in these factors.
In addition, insurance is a spreading of the risk. If you have 10,000
doctors insured by MIIX, letís say, in New Jersey, and 1,000 of them are
classified as high-risk doctors -- obstetricians, neurosurgeons, orthopedic
surgeons -- and you have 9,000 that are considered either low risk or medium
risk, and your loss data shows that a neurosurgeonís loss ratio is 30 times that
of a family practitioner, you just donít go and charge that neurosurgeon 30 times
the family practitioner rate. The reason is, youíll price neurosurgeons out of the
market. So what you do is, you say, well, there are only 70 neurosurgeons in
New Jersey. You make them a reasonable rate. You take the difference, and
you spread that difference around the other 9,000 low-risk people, so that the
rest pay $300 more or $400 more or $500 more. So, in essence, companies like
MIIX and Princeton are already, in their rates, supposed to be subsidizing high
risk. Now, we did it when I was there. I donít know whether theyíre still doing
that or not, and the Insurance Department ought to make sure that they are.
The second issue that Iíd like to talk about, and a possible solution,
is to get the Board of Medical Examiners to be more proactive in terms of
looking at doctors that are repeat offenders in terms of medical malpractice.
And figures are tossed around -- 5 percent of the doctors account for 60 percent
of the medical malpractice losses. And I think youíve got to take that into a
context, because a lot of that 5 percent are high-risk doctors. But a norm must
be established for each speciality, and doctors whose claimsí experience are one
standard deviation away, or two standard deviations away, should be
investigated. And that doesnít mean that everyone of them should be
disciplined or sanctioned, but it means that the public is -- at least hold an
investigation as to why these doctors are engendering so many malpractice
The third issue really relates to something that I think can save a
lot of money in this system. And that is, early settlements of meritorious cases.
And there are a number of factors in the system that are working against that.
The first thing that works against that is that the insurance policy contains the
consent-to-settle clause. The consent-to-settle clause gives the doctor the right
to consent to a settlement or not consent to a settlement. When the insurance
company does an in-house peer review and their own peer reviewer says that the
doctor was negligent, and the insurer wants to settle the case and the doctor
says, no, the hands of the insurer are tied. Now that was put in there -- that
consent-to-settle clause was originally put in by MIIX, because they wanted to
show the doctors that they were different from the commercial carriers that had
been insuring them.
Well, the policy also contains a cooperation clause, saying that the
doctor must cooperate in his own defense. He must provide records. Heís not
going to alter the records. Heís going to show up at deposition. Heís going to
show up at trial. Well, if itís been determined by the carrier that the case really
is -- thereís liability on the case and should be settled, the consent-to-settle
clause really is in contradiction to the cooperation clause. And I know of no
other insurance policy -- I certainly donít have to consent to my auto carrier
settling a claim on my behalf.
The second element -- and I guess Iím going to make a lot of people
mad at me today -- the second element working against early settlement of
meritorious claims is the defense attorneys. The insurers pay the defense
attorneys such a paltry rate to defend cases -- $100 an hour, $115 an hour. So,
basically what happens is, the defense attorneys have to tell the carrier that
every case is defensible so they have cases to work on to build up their hours.
If they were paid a reasonable rate, they could make a living defending the really
defensible cases, and the cases with real liability would be settled.
Thirdly, the third issue that works against early settlement of cases
is that many, many cases involve more than one insured, and therefore, more
than one insurance company. And even though the two insurance companies
may know that something was done wrong, they basically argue with one
another. They go back and forth with one another, and they -- in terms of trying
to say, "Well, my guy was only 20, yours was 80." "No, yours was 80, mine
was 20." If there was some mechanism where those cases could be settled early,
and then liability apportioned after the fact by some mediation or arbitration
or some other mechanism, then cases could get settled earlier.
In addition, the passage of a cap would work against early
settlement of cases. Why? If you put a cap on noneconomic damages, the
insurer would have no downside in taking everything to trial, and nothing would
ever get settled. Now, why is it important to settle cases early? Itís important
to settle cases early because studies have shown -- studies that I did, studies that
I have access to -- that a claim, where there was negligence that could have been
settled within 12 months of presentation to the insurance company, that was
not settled until between 36 and 48 months, costs 73 percent more in just
indemnity. When you add the cost of defending the case, the cost about
doubles. So, in essence, a case that could have been settled for $100,000, and
you donít settle it for three or four years, itís going to cost you $173,000, plus
tens of thousands dollars in defense costs. Okay.
I also would like to respond to a comment by the actuary that
insurance companies are not allowed to make up for past losses, or rotten
investment income, or anything in rates made for the next year. Well, theyíre
not supposed to. But basically what happens is, after you make a rate based on
losses -- and you make that rate, letís say, at 140 percent of premium -- and you
now think youíre going to make 80 million of investment income, if instead of
putting in your actuarial report that, "I think weíre going to make 7.5 percent
over the next 15 or 18 years while holding this money," if you say, "Gee, Iíll put
in Iím only going to make 6.5 percent or 5.5 percent." And they can do that,
and the Insurance Department will say thatís reasonable. The difference
between 5.5 percent investment income and 7.5 percent investment income may
be the difference between a 15 or 20 percent change in the premium rate.
Because thatís how much investment income is made over the long term they
hold the money.
I also think itís important that you understand why I left MIIX.
I left because of a dispute over two issues. Firstly, it was disheartening for me
to see a company built on fiscal responsibility to, now, be a company where
insured counts, market share was more important than maintaining a strong
survivorable market. Secondly, I thought that we should continue our tort
reform effort, not because it would save any money, but as a public relations
effort for the doctors in New Jersey and our insureds.
Vince Morasa (phonetic spelling), the Executive Director of the
Medical Society, and at the time the Chairman of the Board of Directors, said
it would just be a waste of money, as additional tort reforms would have no
effect on our business.
ASSEMBLYMAN COHEN: All right.
Any questions from the Committee?
ASSEMBLYMAN CONAWAY: I have a couple.
ASSEMBLYMAN COHEN: Dr. Conaway.
ASSEMBLYMAN CONAWAY: You mentioned -- by the way, just
for the record, I guess -- the bulk of your income now comes from providing
consultants who work to--
MR. WEISS: The bulk of my income comes from consulting with
ASSEMBLYMAN COHEN: You have to hit the red light.
(referring to PA microphone)
MR. WEISS: Oh, red.
The bulk of my income -- all of my income comes from evaluating
and screening medical malpractice cases for plaintiffsí attorneys.
ASSEMBLYMAN CONAWAY: Youíve mentioned in your
statement that, in your opinion, that you didnít think that the bulk of the
awards were driven by noneconomic damages.
MR. WEISS: Correct.
ASSEMBLYMAN CONAWAY: And I guess it begs the question,
then whatís all the fuss about? I mean, if, in your opinion, and people have
different-- Iím sure you donít represent the plaintiffís bar and wouldnít want to
do that, but just for yourself, looking at it, if the noneconomic damages donít
represent a big portion of the awards, then why should anybody care that we put
a cap on noneconomic damages?
MR. WEISS: I think itís a very easy answer. If putting a cap on
noneconomic damages is not going to lower lawsuits and is not going to cut
premiums, but will, in some cases, deny justifiable compensation to seriously
injured people, then why do it? There are people who deserve more than
$250,000 of pain and suffering. There are people who are so seriously injured
that they deserve to be compensated for having-- A neurologically impaired
infant who is going to have a normal life expectancy of 82 years, 80 years, 85
years -- okay. If it was going to save some money in the system and there was
a benefit to society from that, then maybe it should be considered. But thereís
no justification for taking justifiable damages from seriously injured people
when it will have no effect whatsoever. We could not have cut premiums onehalf
of 1 percent, one-tenth of 1 percent, if a cap had passed.
ASSEMBLYMAN CONAWAY: Well, obviously, people have
differing opinions about that. We look at California. We look at the opinion--
MR. WEISS: Well, if they--
ASSEMBLYMAN CONAWAY: The next question.
You talked about the fact, in some of the bills, about cutting the
statute of limitations bringing these cases from 20 years to 11. And I agree with
you, I donít think it will help -- and, indeed, my legislation has a lower number,
because I think 11 wonít work. I thought you said something very interesting --
which I had been arguing in smaller groups -- was that the bulk of parents, of
course, bring these claims within any of the limits, that have been set by
anybody that Iíve seen, in the bills that are currently in the hopper.
So, if you had, say, a statute of limitations that was at six years,
you would expect that that would reduce, over the long term, your payouts, and
should bring savings?
MR. WEISS: This has got to be red, right? (referring to PA
ASSEMBLYMAN COHEN: Just hit red and it will--
MR. WEISS: The answer to that is no. Bringing it down to six is
not going to save any money, and itís going to deny, again, the individual whose
parents didnít bring the claim on his behalf. When he now becomes 17 or 18
years old and realizes that he had a cause of action that he could bring by
himself-- The overwhelming majority of these cases are all within the first three
years. Whether you lower it to six or 10 or 14 or 15, youíre going to save no
money. So if youíre going to save no money, why take rights away from people?
ASSEMBLYMAN CONAWAY: Well, again, those questions are
argued. Rights are certainly very important, and some of us are concerned about
the system as a whole and making sure that there is somebody there to take care
of people. For instance, because of the insurance crisis, we have
ophthalmologists who can no longer afford to take care of the eye care of
neonates, because they canít afford to do the work. And I think thatís a tragedy
for those infants that are born and who we must provide for, that they donít
now have a provider that can afford to take care of them. So Iím focusing on
that tragedy and that problem, as well as the rights of individuals, from my own
Thatís all I have for now.
ASSEMBLYMAN COHEN: Let me ask an open-ended, broad
question that I wouldnít normally try to do in court. But given the fact-- You
see, I find you to be a key witness in these proceedings because you had 14
years of experience at MIIX, which is the key provider in New Jersey to the
Medical Society and its members. And the work that you currently do is not
advocating -- you review claims, whether or not, in your view, the law firm
should pursue or not pursue. So itís not as if youíre testifying in court for either
plaintiff or defendant, but you have a good sense of the type of cases that are
My question to you, in a general sense, since you have specific
information in terms of how MIIX worked, how it operated, how it viewed the
tort system, and everything else, what is your view of all the factors that have
occurred that have raised rates in Jersey and elsewhere?
MR. WEISS: I think there was some naivety on the part of the
actuary group who spoke, because I think that anybody who thinks that MIIX
didnít try to recover lawsuits in Pennsylvania, Texas, and Ohio on the backs of
the New Jersey doctors, I think is very naive. And they can do it by filing
actuarial reports that increase factors by -- that the Insurance Department is not
going to look at. If you go from 5.5 to a 6 percent increase on one factor, and
from 6 to 6.5 on another factor, and you go from 7.5 percent to 5.5 percent on
anticipated investment income, you could recover all of that. Okay.
Second of all, as I said before, the system has a built-in increasing
severity, in that, as wages go up, lost income goes up, as medical care becomes
more costly, the medical component of economic damages goes up. So severity
is always going to go up a little bit. Thereís no question in my mind that thereís
fat in the premium rates in New Jersey. There was fat when I was there, when
rates were reasonable. And thereís nothing to suggest that the fat has gone
away. Itís probably increased.
In addition, thereís nothing to suggest that if you looked at number
of claims filed-- The number of claims filed are going down. Something like
2,200 medical malpractice cases were filed, I believe, in 19--, 2000 -- I donít
know, I donít know the exact years -- and that, last year, was only 1,650. The
number of claims is going down. The thing that the insurance companies have
to do to cut loses are very simple. They need to get defense costs under control.
They need to undertake a program to settle meritorious cases early. That will
save them a bunch of money. And they have to stop paying their boards of
directors and providing them with million-dollar insurance policies, which they
-- I think that they did away with.
The other thing thatís interesting is, when I was with MIIX, when
we first started out, we wrote an occurrence policy. We found that to be very,
very -- after a few years, that that wasnít the best way to control premiums in
this State, so we switched from an occurrence policy to a claims-made policy.
And when I left, we were still selling a claims-made policy. Now, for whatever
reason, they went back to an occurrence policy. It doesnít make any sense. You
can buy a first year claims-made policy at 20 percent of an occurrence rate; a
second year claims-rate policy at 40 percent of an occurrence rate. You donít
actually pay an occurrence rate until youíve reached the mature claims-made
policy which -- five years, six years, seven years -- Iím not really sure where it
falls in the actuarial scale now. But they can save money by going to a
claims-made policy and making things more affordable.
The other thing is that the Insurance Department should make sure
that the way that theyíre making rates for specialties is spreading the risk. They
need to make sure that theyíre not charging neurosurgeons and orthopedists and
obstetricians their true loss ratio. That would be unconscionable.
ASSEMBLYMAN COHEN: Would that be possible to be -- being
MR. WEISS: But thereís a way to do it--
ASSEMBLYMAN COHEN: Could that be happening?
MR. WEISS: It could be happening. I donít know that it is
happening. All Iím saying is that, for example, when I was there, the loss data
showed that a neurosurgeon should pay 25 times a family practitioner rate. We
only charged him seven times. Because you take the difference between the
seven times and the 25 times and you spread it across the 9,000 family
practitioners and the allergists and dermatologists, so each one is making up a
couple of hundred dollars and youíre keeping each neurosurgeon from paying
an extra $180,000. Well, isnít that what youíre talking about now with this
bill? Subsidizing those specials. Well, thatís supposed to already have been
done. And I think itís a good idea to do it here if -- but first make sure that the
insurance company is doing their portion to subsidize those rates.
ASSEMBLYMAN CONAWAY: Which is us doing that
subsidization, by the way. Go ahead.
ASSEMBLYMAN COHEN: Assemblyman DíAmato.
ASSEMBLYMAN DíAMATO: Thank you, sir.
I want to make a statement and, maybe, together you can help me
frame the question. Iíve been practicing 28 years as an attorney. I was
discussing with my wife, who handles the books in the office, that 10 years ago,
when legal malpractice insurance for $3 million was about $5,500-- Iím now
up to $13,000 per year, per lawyer. I havenít had one claim against me in 28
years. Iím told by people who are more astute than I am that, simply, thatís
what the cost of insurance is. The market is going up.
To what extent, with respect to medical malpractice insurance, do
we simply see that a component in the higher premiums is simply that the cost
of insuring a professional, whether it be an architect, a physician, or a lawyer,
is simply going up?
MR. WEISS: Oh, I believe that to be the case. I believe that costs
go up and-- Itís interesting that you bring up that issue, because professional
liability premiums for lawyers have just about tracked those of physicians.
Those of accountants have just about tracked those of physicians. And itís
interesting to note that those two professions, the losses in those two
professions, have no noneconomic component. Thereís no noneconomic
component to an accountant malpractice or a lawyerís malpractice. And, yet,
their rates have gone up the same as physician rates.
Another thing that needs to be done is administrative costs in
insurance companies. When I was with MIIX, we ran the insurance company
at nine cents on the dollar. Iíll bet you that thatís more than doubled. You can
run a company very efficiently if you pay your people liveable wages, you
control what theyíre doing, you control defense costs, you do early settlements
of claims, you get the Board of Medical Examiners to at least investigate
doctors, you get the State Department of Insurance to really clamp down and
look at premiums -- look at the way theyíre made, look at what it --
(indiscernible) they have been given for investment income. Look at how
theyíre trending each of their factors -- look that their building into the trend
decreases in number of claims, decreases in this, decreases in that, and their not
holding it out to see whether it happens again and again and again. If you do
those things and you go ahead and make sure that the insurance company is
subsidizing high-risk physicians, itís my opinion you wouldnít have to do
anything, and premiums would stabilize and maybe even come down.
ASSEMBLYMAN DíAMATO: Thank you, Mr. Chairman.
ASSEMBLYMAN CONAWAY: I would say that, I guess, if you
saw -- what -- 100-and-some percent increase over 28 years, I think a lot of
physicians would love to see that over 28 years. Weíre seeing people seeing 100
percent increase in a year or two. So Iím not quite sure I agree with the
proposition that the rates of physicians and other professionals are tracking.
You mentioned about this business of having a claims-made policy.
Itís not one that I would purchase. Iím paying, I guess, more for an occurrence
policy, because it gives me more protection. Iíve talked to folks that have to
make claims-made policies or buy those, because they canít afford to get the
occurrence plus, and theyíve gotten quotes that their tail coverage was over
100,000 -- $200,000, one person told me. Youíre also telling me that in order
to get this rate I have to stay with a company five years. Iíve been with three
different companies shopping for better rates, as we move forward. And of
course, in Pennsylvania theyíve seen companies go out of business. The
obstetrician that was here has seen her company go out of business, and now
sheís going to be exposed to liability in the out years. Why would one-- Is it
really a good deal for anybody to get a claims-made policy, and isnít the reason
why not a whole bunch of them are written when things are well is because it
doesnít provide the same level of protection, and also protection against
companies going out of business, and all the vagaries that happen that an
occurrence policy gives you?
MR. WEISS: I think the wordprotection, okay-- You asked a
number of questions, and Iíll respond to each and every one of them. Does a
claims-made policy provide the same amount of protection? In essence, yes.
It only does it in a different way. What it does is, it lets you save money the
first few years that you practice. You save 80 percent of the premium the first
year, 60 percent the second year, something like 45 percent the third year--
ASSEMBLYMAN CONAWAY: If I stay with them the whole time.
MR. WEISS: Well, wait a second. And you save that all. And
then at the end, when you quit practice, you have to buy a tail, and now you
say that tail may cost you a 100 percent, 200 percent. Thatís true. Thatís true.
But it affords the same level of protection, and youíre not paying for it up front.
So the obstetricians who are new to the business and, maybe, donít have a
flourishing practice, who want to deliver babies their first and second year in
practice, can certainly do that by buying a claims-made policy.
The answer to the other part of your question is, that when you
change carriers, okay-- When you change carriers, if you buy a tail from the
carrier you left, the carrier you are going to will charge you a first year
claims-made rate, which is 20 percent. If you donít buy the tail, then the carrier
is either going to charge you -- if you were two years with another company --
theyíll charge you the third year rate or they will sell you whatís called a prior
acts policy, saying Iím going to cover you for all your prior acts. And theyíll
price that based on how many years you were insured with the other company.
But to say that an occurrence policy provides you more protection is not true.
Both provide you the protection assuming you buy the tail at the end.
ASSEMBLYMAN CONAWAY: I mean, if Iím making a decision
about -- assuming, buying a tail-- People are going out in the market to buy the
tail and find that they canít afford it. I know that if -- what my premium is
going to be in that year, and if I could afford to pay it and make a go of it, Iím
going to pay that, and Iím done. What youíre saying is that someone in my
position is going to say, "Well, look, weíre going to stay here, around for a
while, and then, hopefully, when it comes time for me to buy the tail, I can
afford to buy the tail." Thatís the uncertainty that I think that, certainly, I
wouldnít accept, and I think a lot of people wonít accept. And so, as far as
from where I sit, I think thatís less protection, because I now have to hope that
I can afford the tail coverage when it comes time for me to buy it. Right?
MR. WEISS: I think you have a point. I think thatís why people
should be given choices. Okay. First year doctors who canít afford an
occurrence policy should be given the opportunity to buy a claims-made policy.
Everybody is in a different position. I can afford to drive a Chevy and you can
afford to drive -- whatever you drive. I can afford to buy an occurrence policy,
you can afford to buy a claims-made policy. The problem is that theyíre not
giving those people the opportunity to buy the cheaper policy which provides
the same protection. Okay. Now, are you taking a chance that, at the end, the
price of the tail is going to be exorbitant? Yes. But again, thatís where the
Insurance Department comes in and the Insurance Department should be made
to approve the rates every year, tail rates every year, to make sure that theyíre
not gouging the insureds, to make sure that those rates are not making up for
past bad underwriting decisions, bad claims decisions, bad investment decisions,
and should reflect the true nature of the losses in the business.
ASSEMBLYMAN CONAWAY: Now you mentioned that -- what
sounds like to me is that -- these insurance companies can, basically, do
whatever they want with the numbers, which has always concerned me. And
that the government really doesnít have enough, either, regulatory authority or
power to actually get in there and make sure that the numbers it receives, as part
of its oversight responsibility are -- to, in fact, represent a true reflection of
whatís going on inside that company. You have made some suggestions that we
need to step that up, and I was wondering if you could put some more clothes
on that. It sounds like we-- In your experience, does the government send its
own auditors into these insurance companies to get the data that it needs to find
if-- "Well, thatís a fad. It sounds like itís been there. Itís going to be there in
the future if we canít do anything about it." So Iím not sure how it plays on
this particular discussion. But are there things we can do, ought to be doing, in
terms of independent audits or other things, to make sure that we are getting the
truth from these folks?
MR. WEISS: The answer is yes. Medical malpractice is a lot
different than other types of insurance. Itís a lot different than automobile,
where the accident happened this year, youíre covered this year, the accident
happened this year, and, boom, the whole thing is going to be over shortly, or
other types are. Medical malpractice is a very long-tailed line of insurance. If
you write an occurrence policy, okay, one-half of 1 percent of the claims you
see, and the money youíre going to spend, is going to go out the first year. Only
4 percent is going to go out the second year. Itís such a long-tailed line, and Iím
not sure whether-- And again, I donít want to be disparaging to the Insurance
Department, but I donít know what kind of actuaries they have. I donít know
what their understanding is as to the different lines of insurance, and whether
they have actuaries that really understand medical malpractice, or any kind of
professional liability, where itís going to take that long, where you may see a
claim-- You may not see a claim from a-- Letís say the parents didnít file a
claim for the kid, and now the kid, at age 18, says, "Iíve been injured. I want
to file a claim." Well, that claim goes back against the policy of 18 years ago.
Itís very difficult to make rates. Itís very easy, because of such a long-tailed
line, to -- I donít want to use the word fudge, donít take it that way -- but for
medical malpractice actuaries to say, "Well, Iíll make this 6 percent rather than
5 percent." Well, the effect of that over 15 or 18 years is 15 or 20 percent in the
rate. If the Insurance Department doesnít understand that, and your Insurance
Department is not willing to say to this company, "Thatís not supposed to be
six, thatís supposed to be five," or "No, you canít say Iím going to earn only 4
percent. You got to say, Iím going to earn 6 percent." The rate will come down
20 percent or 25 percent, or whatever their number is.
But I donít think any of thatís done. I donít think anything is
done. The other thing is that I firmly believe that a legislator, whether it be
State or Federal, should never consider passing any legislation unless they have
accurate, valid data upon which to judge what it is theyíre doing. Okay. What
you should do--
ASSEMBLYMAN COHEN: Donít disrupt our system too much.
MR. WEISS: --from this point on is, the Insurance Department or
somebody should require the insurers to keep that information on their
computer systems as to economic loss versus noneconomic loss. They should
be required to keep information about severity of claims, dollars paid by severity
of injury, so that we can see that last year a severity eight was 300,000. This
year, itís 297,000. Itís about the same. But the reason it went up overall from
250 to 300 is because we got many more eights. But they donít keep this data.
And they come to the Legislature and they ask for help with a crisis thatís
manufactured by the insurance companies, by the way they make rates, by the
way they invest their money, by the way they go out and write in other states
where they all donít know what the environment is in the other states, because
they think success is measured in market share rather than the mission that these
companies were created for. And this is not only in New Jersey.
In Pennsylvania, the Pennsylvania company PMSLIC, you canít be
insured by them unless youíre a member of the medical society. If youíre not,
theyíll almost pay you a dues to make sure youíre a member of the medical
ASSEMBLYMAN CONAWAY: I was in PMSLIC, before they
went out of business or withdrew from the market. I had them, and I didnít
have to be a member of the medical society.
MR. WEISS: This is something thatís not just in New Jersey. Itís
all over the place. The truth is, better monitoring of the way premium rates are
made, better monitoring of physicians who are repeat offenders, early settlement
of claims, everything Iíve said before, will stabilize the market and maybe even
bring it down to a reasonable rate.
ASSEMBLYMAN CONAWAY: The last one for me, anyway.
Do you have any reason to assume that this severity factor is
significant in the data that the independent actuary presented earlier today? I
mean, any reason -- do you have any sense of, are things more severe and,
perhaps, thatís driving these numbers -- or, even, maintain these high numbers,
even as cases are coming down? Are things just worse out there in terms of
injury, in your opinion, or based on, I hope, some data or knowledge you have?
MR. WEISS: I think the cost to a plaintiffís attorney of pursuing
a medical malpractice action is prohibitive. The cost is high. The average cost
of pursuing a medical malpractice case on behalf of a plaintiffís attorney is
probably between $30,000 and $50,000 a case. So theyíre not going to take
cases of low severity. Theyíre going to take cases of high severity where there are
high damages. So, basically, what you end up with, okay, year after year after
year, you end up with increasing severities of injury, but it doesnít mean that the
amount of money paid on those injuries has been going up. Thereís just more
ASSEMBLYMAN CONAWAY: Or severe, you said. The more
MR. WEISS: More severe injuries. In the cases -- for example, in
the 610 cases that we counseled our clients to go ahead with, Iím not aware of
any of those cases -- and, of course, theyíre not all settled, some of them are still
going on -- but Iím not aware of any one of those cases where there was a
significant settlement or verdict that had an unreasonable noneconomic
component. In fact, most of them had no noneconomic component. Most of
them were justified by the severity of injury, the age of the patient, the job that
the patient had and how much lost income was being generated, and the need
for custodial care and others things that go into economic loss.
ASSEMBLYMAN COHEN: Assemblywoman Pou.
ASSEMBLYWOMAN POU: Very quickly. You had mentioned,
and I believe very early on into your testimony, and I think the Assemblyman,
Conaway, had made reference to it, but -- if you could explain to me, if you
have an opinion or any of your data that will show -- you mentioned that
thereís a decrease in the claims from last yearís amount, the yearly claims are
lower now than what they were before. Would you say that that may be
attributed to the decrease in the specialties?
MR. WEISS: No. I believe that the decrease in the number of
malpractice claims that were filed is directly related to the legislation that was
passed in 1995 requiring an affidavit of merit before -- in order to proceed with
a medical malpractice client. That legislation said that once a claim has been
filed, the plaintiff has 60 days in which to provide an affidavit of merit from an
expert with at least five years experience in the same speciality. Okay. Now,
that has helped decrease cases where, before, there would be claims filed and
somebody would go through and, maybe, wait a year or 18 months before they
would find an expert. Now you have to find an expert quickly. You have to get
that affidavit. And basically, thatís why the number of claims dropped from
2,200 to 1,650. I believe thereís a direct relationship. You can see the number
of claims going down after that legislation was passed.
ASSEMBLYWOMAN POU: As a result of the higher premium
insurance, would you say that we have the number of subspecialties currently
in place that are going to be able to provide the kind of input and information
that youíre referring to?
MR. WEISS: Yes. MIIX, for example, has specialties broken down
into well over 100 categories. There are surgical categories, nonsurgical
categories. They have orthopedic surgery. They have orthopedics/office practice
only. They have -- so they have specialties broken down. They even have
specialties broken down into subspecialties. They have more than 100 of them
and, basically, data should be kept among those specialties. And I donít know
whether you have to break it down that fine. You could certainly combine some
like-specialties. Family practice and general practice are pretty much the same
thing. Internists that are practicing as general practitioners can be folded in with
the same thing. But data should be kept as to the norms for those specialties,
in terms of numbers of cases that they get dragged into, the number of cases that
end up being paid, the number of cases that end up being closed with no
payment, what the average is, letís say-- So you come up with a profile for an
average doctor in that specialty. And then what you do is, you say, "Well,
somebody is one over that." You certainly donít want to bother with them, but
you do a statistical analysis and say, "If theyíre one standard deviation away or
two standard deviations away on this bell curve," then you want to look at
Like I said before, you donít want to look at them with an eye
toward, that, they should be disciplined, that they should be sanctioned, but
you want to look at it to see if you can find out why they are generating these
claims and whether something can be done to modify the way they practice.
When I was with MIIX, we had a dog-and-pony show where we
would-- We had a whole loss prevention department, and we would send
people out to doctorís offices to see the way their office was set up, because we
had determined that there was a good portion of claims that were not being
generated by the medicine being practiced, but were being generated by the
systems in the doctorsí offices, where test results would come back in and the
nurse would file them before the doctor would see it. So three days later,
somebody who had an abnormal stress test would die of a MI.
So we would go in and we would look at the systems in the doctorsí
offices and say, "Look, you canít practice medicine this way. What you must
do is, you must have a system so that nobody will file anything unless your
initials are on the bottom, to make sure you saw that." We also had loss
prevention that was very, very specialty specific.
We had, and Iíll give you an example of the way it works and can
work if itís taken seriously. We had had, from 1979 through í83 -- we had had
a whole bunch of claims involving the use of two different kinds of agents in
anesthesia -- IV Valium and something else. I forget what it was right now.
And we had a whole bunch of claims -- 11, 12 of them -- and they were costing
us a lot of money. We went to the Association of Anesthesiologists. We told
them what the problems were. They took it seriously. They put it in their
newsletters. Every time they had a meeting they told the doctors about this.
And lo and behold, in the next six years, we only had one case. We had 11
cases in four years and, boom, the next six years only one case.
Loss prevention works if the societies take it seriously -- if you go
to the Society of Orthopedics, and OB/GYN, ACOG, and the rest and you tell
them, "This is whatís causing your losses and this is the way you can prevent it."
I used to go on the road, when I was at MIIX -- I used to go on the road and
speak to 400 general surgeons in Las Vegas or 300 otolaryngologists in Phoenix
and tell them, this is whatís causing your losses and this is the way to prevent
them. How much of that is going on, whether theyíre devoting enough money
to loss prevention, I donít know. We devoted a lot of money to it, and in
certain situations, it paid off big.
ASSEMBLYWOMAN POU: Thank you, Mr. Chairman.
ASSEMBLYMAN COHEN: Thank you.
Any other questions from the Committee? (no response)
Thank you very much, Mr. Weiss.
MR. WEISS: Thank you.
ASSEMBLYMAN COHEN: Ed McCreedy and Valerie Brown.
Nice to see you, Ed.
E D W I N J. M c C R E E D Y, ESQ.: Mr. Chairman, members of both
You all know Valerie, I think.
Iím Ed McCreedy. Iím the First Vice President of the New Jersey
State Bar Association, which is the largest professional association in the state
representing attorneys. Iíve also been practicing law doing exclusively litigated
matters for approximately 34 years. Iíve been involved in medical malpractice
litigation on both sides, representing doctors and representing plaintiffs as well.
We recognize the extensive debate that has preceded this hearing,
and we appreciate being a part of the dialogue on this important issue. We
oppose some medical malpractice reform provisions and support others. Let me
The New Jersey State Bar Association Task Force on Medical
Malpractice was formed last year and is actively engaged in review of this critical
issue. The task force brings together knowledgeable members of the Bar, who
represent clients on all sides of the issue -- doctors, hospitals, the insurance
industry, and injured patients -- because we represent all lawyers. I happen to
serve on that task force. We have kept our members abreast of the latest
medical malpractice developments through our newspaper, theNew Jersey Lawyer,
and communicated with State print and broadcast media, and met with
members of the State Legislature, the Office of the Governor, the Commissioner
of Banking and Insurance, and other affected interest groups.
We were pleased to see that the Senate version of the medical
malpractice legislation, passed in March, included the State Bar Association on
the Medical Care Availability Task Force. We recommend such a task force,
and we hope that the Assembly will include us in the task force as well.
However, we believe that deliberate study of medical malpractice by the task
force should occur before any reforms are instituted.
And if I could just depart from my prepared remarks a moment--
And what Iíve heard today leads me to that conclusion even more. The idea
that the information thatís been provided by MIIX, and apparently by Princeton
or anyone else doing insurance, is so sketchy-- And listening to the accountant,
or the expert, who testified on behalf of MIIX, and listening just now to Mr.
Weiss as well, I have to think that the information is available, or can be made
available, that would enable the Legislature to determine exactly what
noneconomic loss is costing in medical malpractice matters and to tailor
legislation based on that. So we believe very strongly that there should be a task
force and an investigation, to include the insurance companies providing
information thatís needed in order to make intelligent decisions.
With respect to the current legislation and the rumored legislation
in the Assembly, a couple of comments. First of all, we strongly oppose a $50
annual assessment on members of the Bar to fund this liability excess fund or
premium relief fund. There is no rational basis for taxing thousands of lawyers
in New Jersey who do not practice in the medical malpractice area to pay for
harm caused by the doctors. In fact, lawyers are beginning to experience, as was
earlier alluded to, a similar premium rate crisis. And if you were to carry this
proposal to its logical conclusion, we would be back here before you asking that
the doctors subsidize our premium increases as well, which makes no sense.
You might, for instance, also say that all accountants in the country
should be billed $50 apiece to bail out the Enron pension plan or something like
that. Or, if a newspaper goes under, letís bill all reporters $50 to help bail out
that newspaper. Itís makes as much sense. The lawyer who is up in Sussex
County doing nothing but closings for his entire practice, and who never sees
and never will see a medical malpractice case, shouldnít be paying $50 for a
doctorís negligence. It makes no sense at all.
If you look at the figures provided by the AOC, you can readily see
that there are, number one, very few malpractice cases, down something like
1,900, down to 1,600 and change. There are about 110,000 cases filed every
year in the Superior Court, so weíre talking about less than 2 percent of the
litigation to begin with, and weíre talking about a very small number of law
firms that prosecute and defend medical malpractice cases. So the great,
overwhelming majority of lawyers in New Jersey have nothing to do with this
issue and shouldnít be subsidizing the doctorsí expenses.
With respect to -- we do believe that if there is going to be some
type of fund, it should be a fund thatís designed for premium relief, rather than
trying to pay for settlements or verdicts.
With respect to caps, there was an editorial inThe Star-Ledger
entitled "Doctors have put a cap on the truth," on February 8. And others have
objectively called into question the efficacy of the cap prescription for relief.
Assemblyman DíAmato, who is here today, put it directly to Patricia Constante
of MIIX, when she was here, "Are you telling the insured physicians in New
Jersey that if this State Legislature passes caps youíll guarantee that you wonít
raise your premiums, in fact, youíll reduce them?" And her answer said, "No,
Iím not telling you that."
The problem is, as you just heard from the last speaker, we really
donít know what the cause of this premium increase is, and there is nothing to
indicate that caps is going to solve it. Caps, after all, deals with noneconomic
loss, and we have no idea what percentage of the payouts are being for
noneconomic loss, as opposed to total payouts.
Just as an aside, there was aSan Diego Times editorial in January, an
op-ed piece by Jamie Court of Californiaís Foundation for Taxpayer and
Consumer Rights, and she was quoted as saying, "Letís lower auto insurance
premiums by stopping lawsuits against drunk drivers, not by preventing drunk
driving. And this is the same logic," she says, "by which insurance companies
and doctor lobbies propose to lower the medical malpractice premiums that
With respect to the proposals for limitations on the statute of
limitations, I know that this is a tempting solution, but it is really contrary to
the entire jurisprudence of this State. We recognize that peopleís claims for
rights should not begin to run until they are aware that they have actual or
constructive notice of the injury. And to pass such a provision, which would
not continue this concept, runs counter to our system of jurisprudence.
Iíve indicated why I believe that there should be a study
commission. We think that the study commission should have all interested
parties present and that there should be no legislation passed until a study
commission takes place with all parties present. We are not convinced that
there is a malpractice litigation crisis in New Jersey. Youíve heard the figures of
the AOC, and I had planned to make a comment with respect to them, but
youíve seen them. In essence, there are very few cases that go to verdict. Only
205 cases were juries-issued verdicts. They found for doctors and against
plaintiffs on 151 of those cases. Of the 54 cases where there was a verdict, the
median verdict was, as the AOC indicated, about $350,000.
And I know from personal experience that many of the verdicts that
get a lot of publicity never wind up being the final result in the case, either
because of settlement or because of remittitur. So you canít just accept those
figures as saying, this is what is returned in malpractice cases.
We believe that the jury system in New Jersey has worked well to
provide justice to all parties on a case-by-case basis. The statistics are, in fact,
objective statistical proof that there is not a medical malpractice lawsuit crisis
in New Jersey. We ask that both Committees consider these points. We thank
you for the opportunity to be heard, and Iíll be happy to answer any questions
if you have them.
ASSEMBLYMAN CONAWAY: Assemblyman DíAmato.
ASSEMBLYMAN DíAMATO: Thank you.
I wanted to share something with Mr. McCreedy, as well as the
members of this Committee. Last week I received a telephone call from my
malpractice carrier, whoís insured me for 28 years. And he said, "Weíre not
going to renew your policy." I said, "Why? I havenít had any claims against
me." "Weíre getting out of the business." So weíre searching for a malpractice
carrier now, and I had to sign a form as to the type of cases I handle in my firm.
I failed to fill in a certain blank, and the underwriter called me up and said, "We
have to know one way or the other, do you do plaintiffsí medical malpractice
work? Do you sue doctors?" I go, "No." He said, "Okay, then, weíre going to
consider you." "What do you mean?" And at which point, I had to get back
to a disposition, and I put my office manager on -- also known as my wife --
and she said, "Whatís going on here?" We went over the whole thing again.
And this underwriter said, "We are not going to insure any plaintiffsí personal
injury attorney who sues doctors." And my wife made the comment, "So is that
your way of handling the medical malpractice crisis?" There was silence on the
I just want to leave that one with you, because I think, before I
leave the Assembly, I think we ought to investigate that particular one. And as
a representative of the New Jersey State Bar Association, letís see if we have that
MR. McCREEDY: Well, weíre beginning to hear complaints about
spiraling premium costs for legal malpractice. Dr. Conawayís comment earlier --
that itís not as bad as it is with doctors -- Iím not sure. I bet it tracks a lot
closer until the last three or four years, when MIIX went to Texas and
Louisiana. Up to that point, I have a feeling that the increases that lawyers and
doctors were experiencing were probably tracking a lot more comparably, but
Iím not an expert.
ASSEMBLYMAN CONAWAY: Anyone else? (no response)
Okay. Thank you for your testimony.
MR. McCREEDY: Thank you.
ASSEMBLYMAN CONAWAY: Whoís next here? Ms. Clark,
youíre coming forward.
L A U R I E C L A R K: Thank you very much, Mr. Chairman.
Due to the lateness of the hour and the fact that my testimony has
pretty much been covered by Mr. Cantor and Dr. Lomazow, I will take the high
road and refrain from testifying. I want to thank everyone for the attention they
paid to this very important issue this morning. I look forward to working with
ASSEMBLYMAN CONAWAY: Bless you. (laughter)
MS. CLARK: I got more points doing that, right? (laughter)
ASSEMBLYMAN CONAWAY: I donít see Ms. Ryan, Betsy? (no
response) She submitted written testimony. We have that.
Letís see, I have Justin Mattes, perhaps, with Frank Rodriguez? (no
Howard Weiss, I think he was called. He was up, thatís right.
Colby and Colby? (no response)
Zaccaria, no? (no response)
Is this the right list?
Okay, is anybody else out there who wants to testify? Please come
forward, draw near, and be heard. (no response)
With that, I will take a motion for adjournment, unless anybody
has any closing comments from the Committee.
ASSEMBLYMAN McKEON: So moved, Mr. Chairman.
ASSEMBLYMAN CONAWAY: Thank you all.