The House Judiciary Committee's decision to reject an arbitrary cap on awards for medical malpractice injuries and deaths was based on the facts presented to the committee. Those claiming that a cap would substantially lower premiums, reduce claims and keep doctors in rural areas failed to provide any supporting data. The Senate Health Committee rejected the same proposal in February because the facts simply did not support it.

The insurance data indicate that malpractice premiums and claims are not "skyrocketing." The reports from the Department of Commerce and Consumer Affairs confirm that medical malpractice claims fell from 173 in 2001 to 115 in 2006, a reduction of 34 percent. Contrary to claims of a litigation "explosion," the facts show a significant reduction.

In addition, premiums have been falling in Hawai'i for the past three years, not "skyrocketing" as claimed. The fact is that the largest insurer in Hawai'i, MIEC, declared a $5 million premium credit, which represented an average rate reduction of 7.5 percent, beginning in 2005. The lower rates have held steady for 2006 and 2007.

It is a fact that premiums for the same specialty and same amount of coverage from the same insurance company on average are higher in California than in Hawai'i. California has had a cap on medical malpractice awards in place for more than 30 years.

However, California rates still exceed Hawai'i's rates. Rates in California kept increasing after "tort reform" until legislation regulating insurance company profits was enacted. The fact that tort reform did not lower premiums in California was revealed in court filings submitted by one of the largest California malpractice insurers in 2003 when rates rose there, just as in Hawai'i and the rest of the nation. It admitted: "While MICRA (tort reform) was the legislature's attempt at remedying the medical malpractice crisis in California in 1975, it did not substantially reduce the relative risk of medical malpractice insurance in California."

The claim that we are losing a lot of doctors is also contradicted by the facts. The fact is that the numbers of doctors in Hawai'i has progressively increased year to year in Hawai'i. The actual numbers went from 3,044 in 2000 to 3,206 in 2001 to 3,251 in 2002 to 3,363 in 2003 to 3,445 in 2004 and to 3,616 in 2005.

It is also a fact that positions advertised with starting salaries of $250,000 or more, plus payment of medical malpractice insurance, on the Neighbor Islands are apparently difficult to fill.

Similarly, finding doctors to serve in rural areas in California continues to be a major problem, even after their medical tort reform. The migration of doctors to urban centers has been a problem throughout the country for more than 20 years. Medicare has offered bonus payments of 5 to 10 percent for doctors willing to serve in rural areas since 1987, without much success.

Indeed, nations in all parts of the world report similar difficulties in attracting and keeping doctors in rural areas, with Canada, Australia, Japan and others experiencing crisis conditions. It is a simple matter of human nature and common sense that doctors prefer urban areas, where the latest technology is available, better advancement opportunities exist, and greater financial and lifestyle choices can be found.

There will never be enough patients for specialists in most rural and Neighbor Island areas to remain proficient or profitable. Scholarships in primary care medicine have been offered if the physician, after graduation, agrees to practice in our rural areas or on the Neighbor Islands for three to five years. It has been very difficult to fill these scholarships, as was testified to at the House hearing on March 1.

Two of my clients testified at the House hearing on "tort reform" on March 1. One was a mother whose son received carbon dioxide instead of oxygen at birth; the second, a father whose newborn daughter was over-medicated with a drug resulting in severe permanent brain damage. Both these children require 24-hour medical care.

The boy who was given carbon dioxide needs 24-hour ventilator care, which required the mother to leave her job as a medical assistant in Honolulu and move to Texas so the child could get nursing care. These cases are rare, but to say we should arbitrarily place a limit of $250,000 or $500,000 on this is patently unfair.

Even supporters of the cap agreed that those limits would be unfair for cases like these. And although supporters of the cap claim that there are "many" runaway jury verdicts, the fact is that they could not identify even one case where inappropriate damages where awarded in a Hawai'i malpractice case.

Finally, doctors cite low reimbursements and the cost of living as the most important reasons they are leaving because they can often double or triple their income in Mainland cities with lower costs of living. Reimbursements must reflect the true cost of providing services and afford a reasonable income for our doctors.

Rick Fried is an attorney who specializes in medical malpractice cases. He wrote this commentary for The Advertiser.