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Louisiana's medical malpractice cap emerged unchanged from the last legislative session as lawmakers, faced with a number of proposals, could not find a compromise that satisfied all parties.

One proposal with broad support sought to increase providers' responsibility to the first $250,000 in damages and the Patient's Compensation Fund's liability to $500,000. However, the proposal failed to gain traction in the Legislature.

Dr. Vincent Culotta, a Metairie OB/GYN who chairs the Louisiana State Medical Society's council on legislation, said the malpractice cap will have to be addressed.

"The question is 'where is the right number?'" Culotta said. "The cap has to exist."

Louisiana is very much in a health care crisis, he said. Some people, including the Louisiana Medical Mutual Insurance Co. (LAMMICO), would like to enact the Texas malpractice model, which caps non-economic damages at $250,000.

Texas implemented the cap in 2004. The cap has reduced malpractice lawsuits and helped increase the number of physicians.

But Culotta said he doesn't believe the same thing would happen here. There are a lot of other things preventing physicians from practicing here, and those things have little to do with changing the malpractice cap, removing it or going to the Texas model, he said.

"We're still recovering from Katrina. We're basically a very poor state. We have probably the highest percentage of Medicaid (patients) of any state in the union," Culotta said.

Changing the malpractice cap won't address those problems, said Culotta, who is also a member of the PCF's board of directors.

Louisiana's $500,000 cap is 33 years old. A coalition of stakeholders, including the State Medical Society and the Louisiana Hospital Association, supported raising the cap.

Other changes suggested included eliminating the medical review panel. Instead, a victim would have to produce a certificate of merit, or letter from a practicing physician that says malpractice occurred. The medical expert would also have to swear to that in court.

Supporters said increasing the cap and the other changes could take the decision out of the courts' hands. The cap's constitutionality has been challenged, with plaintiffs attorneys arguing that the amount set in 1975 is no longer an adequate remedy.

"I think we're always afraid that the courts (will act)," Culotta said. "But the question is will the courts hear the message that the Legislature didn't want to change and leave it alone?"

Dr. Thomas H. Grimstad, president and CEO of LAMMICO, said his company could not support the coalition's proposed legislation. Among other things, Grimstad said there was no guarantee that increasing the primary layer of coverage would result in the Patient's Compensation Fund decreasing its rates.

Supporters of the legislation had said lower PCF rates would offset the increase in costs providers faced for taking on the first $250,000 in coverage.

In addition, Grimstad said there is no way to predict how a higher cap would affect the number of lawsuits against providers.

"My guess would be, and this is just a guess, is that there would in fact be more lawsuits," Grimstad said. "If there's more money out there to be recovered, then generally speaking you probably would have at least a tendency toward more lawsuits."

However, Grimstad said the malpractice insurer remains committed to a compromise solution.

"I don't think there's any question that there have been times where the cap has made settlements that were not totally fair to plaintiffs," Grimstad said.

At the same time, one must recognize that the overall cost of medical malpractice insurance is higher in Louisiana than in many, many states where caps aren't even part of the law, Grimstad said.

One reason is frequency. Louisiana has nearly double the number of claims per 100 policyholders than Arkansas, Alabama and Texas, according to LAMMICO.

In addition, a lot of money leaves the Patient's Compensation Fund because state law sets no limit on future medical coverage expenses, Grimstad said.

The average payments for LAMMICO's policyholders are as high or even higher than the average payments in states where there are no malpractice caps, Grimstad said.

If the cap is to be changed, the legislation must address the entire system, including the PCF, he said. The system has to be modified to bring some economies into it.

"Otherwise you're just raising malpractice rates, and you're going to get to the point where physicians won't want to come to practice in Louisiana because those rates are so high," Grimstad said.

Grimstad said LAMMICO favors the certificate-of-merit approach, which requires the plaintiff to hire an expert. Under this approach, the plaintiff has to have "some skin in the game" before bringing a lawsuit, he said.

The state should also look at changing the way future medical expenses are paid, such as a system to check so that all charges are not automatically paid as billed, Grimstad said. If the plaintiff has insurance available, that insurance should be utilized.

"If we would do these things together, then I think we could raise these caps to some extent without such a burden on the physician," Grimstad said.

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