Watching the debate about the medical malpractice insurance crisis reminded me of watching my uncle milk cows on my grandfather’s dairy farm when I was a youngster.

He used a three-legged stool, positioned himself at the left rear flank of the cow, placed the metal milking pail beneath its udders, reached in with both hands, squeezed the teats and directed the milk into the pail. The secret to his success was the three-legged stool.

As the crisis reached its flash point in Northeastern Pennsylvania, we were subjected to intimidating tactics from the medical profession that rivaled labor-management strifes of previous years. About 30,000 patients of a high profile medical practice, including myself, received a letter to inform us they would no longer practice after January 1 due to the high cost of medical malpractice insurance.

Not only were we subjected to letters but the same firm ran full page ads in local newspapers to espouse their version of the problem. Doctors were even seen on TV walking a picket line and carrying signs demanding tort reform and damning those lawyer-sharks who swim in the sea of torts. 

Naturally, all of this drew the attention of local, statewide and national politicians, as it was intended to do. Pennsylvania’s governor-elect, Ed Rendell, quickly jumped on the issue and set up a commission consisting of doctors, including one from the practice that threatened to close on January l, as well as lawyers. This was a start but it was only a two-legged stool which left any interim solution slightly out of balance. Some of the milk was missing the pail. Where was the insurance industry?

Not to be outdone by the apparent good publicity governor-elect Rendell was receiving, President George W. Bush made a highly publicized appearance in Scranton and told us that the solution lay in putting caps on pain and suffering awards that juries were giving to “victims” of medical malpractice. Back to the one-legged stool.

Naturally, the trial lawyers cried foul and condemned a policy that blamed the victim rather than the perpetrator. TV’s talking heads joined the fray and media ads soon followed to further polarize the issue. Listening to one on my car radio, I was informed that the fault lay not in the hands of the trial lawyers but in the boardrooms of the insurance companies, who were trying to recover their losses from 9/11 and their depreciating investments in the stock market due to our faltering economy.

I watched an interview with Senator Diane Feinstein of California where caps on pain and suffering are in effect for medical malpractice suits. She believes that it’s working there. The state of Mississippi is also pointed to by the President’s advisers as a place where medical malpractice caps have appreciably reduced insurance premiums. Then again, other pundits say that rates have actually increased in California and caps on pain and suffering don’t allow for non-economic, long-term damages due to medical malpractice.

In reply, there is now a proposal calling for the establishment of a so-called medical ombudsman, who would determine whether or not a pain and suffering claim has merit prior to a trial. Naturally, trial lawyers are highly incensed that our constitutional right to a trial by a jury of our peers will be eroded by the process and threaten to contest it if adopted. Meanwhile, Pennsylvania’s insurance companies threaten to go to court over Governor Rendell’s proposal to tap their reserve funds to offset the high cost of medical malpractice insurance.

Will the resolution of the issue be the one-legged stool suggested by “caps” or the two-legged stool suggested by Governor Rendell? Perhaps the solution is still out there if anyone can find a three-legged stool.