Improvements in medical care should not exclude cooperation between doctors and patients when things go wrong, says Orangeburg’s state senator.

Sen. Brad Hutto, D-Orangeburg, chairman of a state Senate subcommittee charged with studying medical malpractice and liability limits, is no stranger to either topic as he was in the throes of the state legislature’s tort reform debate in 2005.

Last year, Hutto chaired a Patient Claims Subcommittee responsible for finding ways to improve communication between health care providers and patients and to allow alternate resolutions in health care disputes.

n Three of four bills passed

Three of the subcommittee’s resultant bills became laws: one encouraging medical malpractice cases to go to nonbinding arbitration, early neutral arbtration or other forms of alternative dispute resolution; a second requiring Department of Health and Environmental Control-licensed facilities to report accidents; and a third encouraging doctors and hospitals to apologize when problems occur in hopes for a reduction in malpractice cases and an increase in learning from mistakes.

While those three subcommittee’s bills were enacted into law, Sen. Hutto hopes his subcommittee can address two remaining issues.

n Two remaining issues:

birth injuries, inflation factor

Hutto says the subcommittee did not get to study fully a fourth recommendation, which involved compensation funds for babies injured at birth.

Setting up those funds is one of two main issues for the subcommittee, he said. The other is to tie the cap on medical malpractice amounts in disputes involving charitable and governmental entities to an inflation factor to ensure fair compensation for a patient or their family.

“Finger pointing and blaming” and automatically “taking things to court” are not the answer, he said, when catastrophically injured babies, for example, have housing, medical and educational needs that will need attention. Hutto said a fund could compensate or provide services to enable an injured baby to live as normally as possible, and keep the child’s family from going into bankruptcy due to medical bills.

Florida and Virginia have already enacted compensation fund legislation, Hutto said, with representatives from Florida slated to come to a subcommittee hearing in October to talk about their program.

“Who’s going to pay for all this? It would be nice to think that’s not a concern, but, in a lot of cases, it is a concern,” he said. “Why not set up a fund to ease some of the money that might otherwise come out of the Medicaid program or the local hospital budget if a person doesn’t have insurance?”

As an attorney who has represented doctors in malpractice cases, Hutto is aware of the time and resources which can be poured into those cases. “I sit on the Medical Affairs Committee, I’m married to a doctor and I’m an attorney, so I think all of those parts of my background do come together to give me a little bit of insight into this,” Hutto said.

n Insurance forcing doctors out of practice

Another member of the subcommittee is Dist. 34 Sen. Ray Cleary of Murrells Inlet, R-Georgetown, who has practiced dentistry for 35 years.

Soaring malpractice insurance premiums are a direct result of increased filing of malpractice lawsuits, Cleary said, adding that many doctors cannot afford the premiums and consequently do not practice.

“We want to have quality doctors and accessibility, but some of these issues affect the medical field and the availability of doctors to stay in South Carolina in practice,” he said.

“We have excellent obstetrical physicians that are not doing it because they’re in their 50s and 60s and to operate a seven-day-a-week profession, they can’t justify the premium,” Cleary said. “We have a neurosurgeon that won’t (perform surgeries) because the few cases he does don’t justify the premiums he’d have to pay. Are we going to lose children or people because of that?”

The proposal for compensation funds will help parents and children get aid more quickly without “waiting two or three or four years on a trial to determine guilt” in a malpractice trial, he said.

Patient care must be paramount. “Whether you’re an attorney, dentist or a doctor, you do not do what’s best for us or our profession, but (when malpractice occurs) that’s what happens in most cases,” Cleary added.

n Caps on payouts

need updating

Concerning the issue of malpractice payouts by charities and governmental bodies, Hutto said those payouts are limited by law. “Caps haven’t been looked at for a while, and to keep up with the cost of living and the cost of medical care, we need to at least look at it,” Hutto said. “We don’t have any preconceived notion that they need to be adjusted, but they haven’t been.’

The subcommittee will decide whether to adjust the cap or tie it to an inflation factor to allow it to move without the requirement of legislative action to factor in inflation.

n Hospitals urged to report

Sen. Cleary commented that he thinks Hutto has done an admirable job in looking at the issues and also said that the bills passed did not defer to any special interest group.

“We really want good reporting from hospitals to know where issues are,” Cleary said. “Hospitals say if they report too much, they open themselves up to litigation, but if they don’t report at all, they don’t know if there’s a problem.”

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