By T. Lloyd Croft
Professional Medical Insurance Services
In less than a year the U. S. Senate has jettisoned -- three different times -- bills that would impose caps on medical malpractice damage awards. A number of states have also failed to pass legislation to reduce such awards, despite backing by such heavyweights as the American Medical Association and Senate Majority Leader Bill Frist (R-TN).
Most of the bills proposed at the state and federal levels have suggested capping "noneconomic damages," (i.e. pain and suffering) at $250,000 to $500,000, and/or limiting the maximum amount of any malpractice award.
While there are innumerable reasons why these bills have failed, the following are the most prominent:
Inadequate awards. Caps could penalize those who sustain actual damages that require significantly higher awards in order to provide for continuing care and maintenance of lifestyle.
Adults, and especially children, left with a severe disability because of alleged medical errors may require several million dollars over their expected lifespan to provide for care and/or support of their families.
Tort doesn't always have teeth. There is little evidence that tort reform actually reduces the cost of malpractice insurance. Although some states, Florida and Nevada, for example, recently passed malpractice reforms, physician malpractice premiums have continued to rise. The availability and affordability of malpractice insurance is still an issue for many physicians.
It is also clear that insurance companies do not immediately reduce rates simply because of new legislation. Instead, insurers wait until the laws have been upheld by state appellate courts or even the U.S. Supreme Court. Historically, the average time between the passage of new legislation and any significant reduction in malpractice rates has been about five years.
The myth of malpractice. Trial lawyers, special-interest groups, and politicians have put their unique spin on the legal and statistical data, supposedly proving that the medical malpractice crisis is a myth invented by physicians.
One weapon they use is physician salaries. For example, the average net income of surgeons, and certain other specialties, is about $322,000, these anti-legislation groups argue. On the other hand, they say the average malpractice premium that a physician pays is only a little over 6% of his or her gross income. Thus, they should have no problem paying their malpractice premiums.
Other "evidence" touts reports that the frequency and severity of malpractice claims is on the decline. While this may be true for certain companies and in certain states and/or medical specialties, the vast majority of companies with a history of specializing in medical malpractice continue to experience an increase in the frequency and severity of claims, and the costs of defending claims.
Physicians and self-policing. The failure of the medical profession to police itself is the problem here, not the legal system. That's the argument made by the general public, plaintiff attorneys, the public interest groups, and politicians who are against malpractice reform. It is arguably the most damaging. Countless cases have been cited where physicians had numerous complaints or malpractice suits brought against them, or even had been censured by a medical association and/or healthcare facility, yet they still maintained their license to practice medicine.
The result is a broad-stroke picture of an uncaring profession that cares more about protecting its income than its patients.
The future of reform. Whether the federal government will ever enact meaningful tort-reform legislation is anyone's guess. Many states have been successful in passing some form of malpractice legislation that will eventually produce a more reasonable litigation environment and more realistic malpractice premiums -- if that legislation is upheld.
The public must understand that outrageous awards, undertaken to punish a physician or other healthcare provider, serve no purpose. These awards often far exceed the amount of malpractice insurance available. They serve only to exacerbate the cost of medical care, creating physician shortages in certain areas, and degrading the overall quality of healthcare delivery.
By T. Lloyd Croft
AuntMinnie.com contributing writer
July 8, 2004
T. Lloyd Croft is a vice president of Professional Medical Insurance Services. He is based in Arlington Heights, IL.
Related Reading
Malpractice crisis prompts look at self-insurance, June 8, 2004
U.S. Senate again spurns medical malpractice measure, April 8, 2004
U.S. Senate to revisit medical malpractice debate, March 31, 2004
Malpractice bill likely to falter again in U.S. Senate, February 25, 2004
Frist sees new tack on medical malpractice, February 10, 2004
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