Malpractice makes perfect: how the GOP milks a phony doctors' insurance crisis.

• Author: Mencimer, Stephanie

When he went out on strike last January, Dr. Robert Zaleski had his 15 minutes of fame. The Wheeling, W. Va., orthopedic surgeon was one of two dozen surgeons to walk off the job in January to protest his states high costs of malpractice insurance.

Arguing that "frivolous lawsuits" were driving up insurance premiums and forcing physicians to leave the state, Zaleski and his colleagues threatened to stay out for 30 days unless the legislature passed a bill that would cap non-economic damages in such suits at $250,000. As the walkout turned into a national story, Zaleski became one of its most visible faces, making the rounds of TV news shows and telling CNN, "I would certainly jump in front of a bus if I could to continue to serve my patients as I have for 23 years." Just a few weeks later, Zaleski's mug shot appeared with those of five other doctors in The New York Times Magazine, where he claimed to be "on the brink" of moving" out of state because of high insurance rates and lawsuits.

Zaleski and his colleagues are the leading edge of a much broader movement. All across the country, doctors like him are telling reporters, legislators, and even their patients that frivolous lawsuits are driving up insurance costs and driving doctors out of practice and out of state, threatening access to care. They've mobilized around state legislation to limit malpractice lawsuits and linked arms with President Bush and Republicans in Congress who have been pushing similar bills in Washington. Indeed, Zaleski himself was even personally invited to attend a speech President Bush delivered in Scranton, Pa., where he Palled against the threat to patient care posed by out-of-control lawsuits.

Upon closer inspection, however, it appears that Zaleski may be more a source of the problem than a victim of it. Between 1987 and 2002, according to the West Virginia Board of Medicine, patients filed 14 lawsuits against Zaleski, eight of which resulted in payouts that together came to $1.7 million. By contrast, according to a Public Citizen study, only 1 percent of the state's doctors made five or more malpractice payouts over the past decade. And while Zaleski says the settlement figures are misleading because they also include defense costs, his record is hardly squeaky clean. In a 1985 lawsuit (one not among the 14 reported to the Board of Medicine), he admitted in a deposition to being addicted to prescription painkillers for a substantial part of the time that he was operating on people in the early 1980s. Not only was he a drug addict, but to maintain his Percodan habit, Zaleski allegedly wrote prescriptions for other local addicts, who filled them and kicked back some pills to the doctor, according to court documents that include copies of the prescriptions and depositions from some of the addicts.

Yet even though a suspicious police officer reported him to the state medical board, Zaleski was never disciplined by his fellow physicians. (He says he does not remember the specifics of the case, and while he acknowledges a past substance-abuse problem, insists that he has been clean and sober for 21 years.) Given this history, the real scandal may not be how high Zaleski's insurance premiums are, but the fact that he can get insurance at all.

Zaleski's malpractice record may have been extreme, but it was not unusual among the doctors who walked out of West Virginia hospitals in January. According to a Charleston Gazette report, nine of the 18 doctors striking at Wheeling Hospital, including Zaleski, had cost their insurers more than $6 million in malpractice settlements and judgments. At least some of the suits don't seem to merit the adjective "frivolous." In one case, a doctor had left a clip on an artery; eventually forcing the patient to have a liver transplant. In another, a surgeon cut into his patient's stomach wall during surgery, causing" a massive, fatal infection. Indeed, a number of those doctors leading the protest movement include former drug addicts, felons, doctors whose licenses have been revoked, and many, many others who get sued a lot--and far more than most of their colleagues.

Not 'all the physicians angry about malpractice lawsuits and high insurance rates have such checkered histories as Dr. Zaleski. Many ethical and responsible doctors say the system invites frivolous litigation, subjecting them to considerable hassle and anxiety. One result, they argue, is an increase in "defensive medicine"--when doctors schedule too many tests, just to be safe--which contributes to higher health care costs for everybody. But even the respected General Accounting Office (GAO) has recently concluded that there's little evidence to back the striking doctors' main claim, which is that lawsuits are forcing many of them to abandon the practice of medicine or to avoid high-risk procedures. And while there's no doubt that malpractice insurance is getting more expensive across the board--about 30 to 40 percent, on average, during the last three years--this increase is largely due to the ailing stock market and poor business practices hi a virtually unregulated industry. As a result, there's no reason to think that capping jury awards would bring premiums down, a fact the insurance industry itself acknowledges. Robert E. White Jr., president of First Professional Insurance Company; the leading medical malpractice insurer in Florida, told the Palm Beach Post in January; "No responsible insurer can cut its rates after a [medical malpractice] bill passes." The one surefire way to bring down the number of big-payout lawsuits is to reduce the number of those doctors who inspire most of them. But state medical boards--which are run by doctors--have been notoriously reluctant to aggressively police their own.

The doctors' protests aren't about good policy. They're about good politics. Although the malpractice strikes look like a natural outgrowth of physician frustration, they are, in fact, the product of a sophisticated lobbying campaign coordinated by Republican operatives and underwritten by business groups with little interest in the practice of medicine. GOP leaders view malpractice lawsuits as a pivotal issue for the 2004 campaign. With health-care costs skyrocketing on its watch, the GOP is eager to shift blame onto the Democrats...