When Ohio lawmakers limited the amount of money that patients can collect for medical malpractice, they expected soaring malpractice insurance rates to fall.

Doctors would quit threatening to leave the state. Ohioans would get quality care at more reasonable costs.

But more than a year after the malpractice cap took effect, doctors are paying more for coverage than ever. Obstetrics doctors paid up to $89,000 last year; surgeons, $68,000. Some doctors are paying more than 25 percent of their gross incomes for malpractice insurance, they say.

Insurers say rates won't come down until the new law proves it can stand up in court.

"I cannot overemphasize the critical role the Ohio courts will play in this issue," says Paul Brutus, a top executive with the Medical Assurance Co., one of the state's five major malpractice insurers.

This is why doctors have launched an aggressive campaign to elect Ohio Supreme Court members who they hope will uphold the cap. Four seats on the seven-member court will be decided Nov. 2.

In April 2003, Ohio enacted a $350,000 cap on non-economic damages in most malpractice cases, such as awards for pain and suffering.

Having a damage cap was supposed to reduce insurance rates for doctors by allowing insurers to better predict their potential losses. But depending on their specialty and the insurer involved, doctors in Ohio have seen rate increases ranging from 10 percent to 87 percent or more in 2003 and 2004.

More rate increases are expected for 2005. And all these increases are for doctors who haven't been hit with a verdict or a settlement against them.

The financial sting caused by the rising insurance rates has generated deep, widely shared anger among physicians.

"We have some good legislation that has been passed, yet the rates haven't dropped," says Dr. Molly Katz, a former president of the Academy of Medicine of Cincinnati. "Many physicians are frustrated and impatient."

In other states, doctors are taking drastic steps.

Maryland doctors have announced plans to halt non-emergency surgeries in mid-November for up to two weeks after a top insurer announced a 33 percent rate hike for 2005.

Last year, physicians in West Virginia organized a work stoppage. Doctors in Pennsylvania threatened to quit work in 2003 only to call it off once the governor promised to take action on the malpractice issue.

Why rates stay up

Executives from five malpractice insurers that still do business in Ohio - several have pulled out of the state in the past few years - testified in April before a task force established by the Ohio Department of Insurance. They say Ohio's legal system is out of control.

The difference in malpractice insurance fees for doctors in states that have malpractice reforms versus those that do not can be extreme, says Devin O'Brien, senior counsel for the Doctors Company, based in Napa, Calif.

His company charges a neurosurgeon in Oakland $50,082 a year for coverage. But a neurosurgeon in Cleveland pays $162,201.

The difference: California has had damage caps since 1975 and other reforms since then, including limits on attorney fees. Ohio has a history of not enforcing the tort reform laws that do get passed.

Ohio lawmakers passed versions of tort reform in 1975, 1987 and 1996 - all of which were voided by rulings from the Ohio Supreme Court.

That's why insurers are reluctant to consider Ohio a "stable" malpractice state even though a damage cap is the law of the land.

"Insurers cannot ignore the fact that Ohio has enacted tort reform in the past only to see it struck down by the courts," O'Brien says. "The single most important thing the state could do to assure a moderated rate environment going forward is for the Supreme Court to uphold Ohio's present reforms."

Without reforms that stick, insurers say they have no choice but to increase premiums to cover the unpredictable risk of potentially unlimited jury awards.

"The true culprit behind the high rates being charged today has been the dramatic rise in loss costs. In Ohio, our average cost per claim went from $79,000 in 1995 to $270,000 in 2003," says Ray Mazzotta, president of OHIC, a Columbus-based insurer.

Stop blaming lawyers

Frederick Gittes, president of the Ohio Academy of Trial Lawyers, says doctors should blame the insurers - not the legal system - for high malpractice rates.

"The problem isn't the fact that patients that really have suffered medical malpractice sue doctors for negligent conduct," Gittes says. "It's that insurance companies are trying to make money for bad investments they've made in the past."

Gittes contends that caps on malpractice awards are a fundamentally bad idea.

"Why would you want to protect businesses who purposely or knowingly violate the law? What has that got to do with so-called frivolous lawsuits?" Gittes says. "Because the caps don't affect frivolous cases - they only affect the cases where you have strong evidence, and juries actually make awards and give big awards because of how outrageous the conduct was."

Meanwhile, Democrats in the state legislature are skeptical about making further, sweeping changes to the legal system.

State Rep. Steve Driehaus, a Price Hill Democrat, was among those who voted against the malpractice reform bill in December 2002. He believes there is a malpractice insurance crisis, but doesn't agree tort reform is the solution.

"I personally don't buy the physicians' line ... that if we pass medical malpractice (reform) in the state of Ohio it will fix it," Driehaus says. "Certainly (passing the law) didn't fix it. Now they're changing their tune and saying it has to be challenged to the Supreme Court."

Costs of malpractice

There are no local estimates on how much malpractice insurance, settlements and jury awards add to the overall cost of medical care. But there are some national estimates.

Medical liability adds $70 billion to $126 billion to the costs of health care each year, according to the U.S. Department of Health and Human Services.

Dr. James Baden, 65, a retired Butler County general and vascular surgeon, recently lived through a malpractice case.

He was sued three years ago and recalls spending two weeks in depositions and court hearings, losing money every day that he was unable to see patients.

Ultimately, the case was dismissed with no award given. But Baden's insurance company spent about $125,000 to defend the case, which later sent his insurance rates soaring and prompted him to retire.

"Nobody will admit there is an acceptable risk in medical care," Baden says. "We need a good arbitration system (to reduce frivolous cases) because I think the legal profession is very poor at policing themselves."

Legally, it could take a year or more for the Supreme Court to have a chance to rule on Ohio's malpractice cap.

First, people have to sue doctors for alleged malpractice occurring after April 10, 2003, when the law took effect. At least 50 such cases have been filed statewide.

Then someone has to win a jury award big enough for the cap to kick in - and be driven to challenge the law. Such a challenge would take months to work its way through the state appeals court before it could reach the Ohio Supreme Court, which in turn could take months to rule on the case.

So far, no case has gone beyond the early stages of this process.

If the cap survives legal challenge, insurers say they would start adjusting their rates. But doctors don't plan to wait that long.

Enquirer reporter Jim Siegel contributed. E-mail tbonfield@enquirer.com.