Leo V. Boyle and Roger Felice
Medical malpractice insurance premiums are increasing nationwide because of insurers’ bad business decisions, bad investments, a faltering economy and a few "bad apple" doctors who are responsible for most of the injuries and deaths suffered by patients.
The insurance companies blame — and, worse, want Congress and state legislatures to respond to their problems by punishing — people who have had the wrong side of the brain operated on, cancer misdiagnosed, or have been blinded by laser surgery gone wrong. And doctors, who don’t like paying higher premiums any more than the rest of us, are following their insurers’ lead.
This medical malpractice "crisis" is nothing new. Similar insurance "crises" surfaced in the mid-1970s and 1980s, when, like today, insurance company profits dropped. During these cycles, some state legislatures were pressured to restrict the legal rights of innocent victims — theoretically to bring down insurance rates. It didn’t work.
In 1975, California enacted an absolute limit on the amount a citizen jury — after hearing all the evidence — can order negligent healthcare providers to pay patients they injure or the families of those they kill. Now, 27 years later, California doctors pay 20 percent more for medical malpractice coverage than the national average, according the American Medical Association’s Physician Socioeconomic Statistics, 2000-2002.
This "reform" did not, as promised, reduce malpractice premiums, which, in fact, are higher in the states that have limited injured patients rights than in those which haven’t.
The American Insurance Association — echoed by the leaders of the American Tort Reform Association — admits that limiting the rights of injured people, as it advocates, does not reduce insurance premiums: "(T)he insurance industry never promised that tort reform would achieve specific premium savings."
The problem is not that injured people seek justice. And the solution is not punishing those unfortunate enough to have suffered at the hands of a bad doctor, as the insurance industry proposes.
The problem with medical malpractice is that it occurs far too often. According to the Institute of Medicine’s 1999 report, up to 98,000 patients die in U.S. hospitals each year as a result of preventable medical errors. Malpractice is America’s eighth leading cause of death, killing more than breast cancer or automobile crashes.
Most injured patients and their survivors never learn that they or their loved ones were victims of medical malpractice. Only one out of eight instances of malpractice results in a claim, according to a Harvard study.
A conspiracy of silence protects many negligent doctors.
A West Virginia Sunday Gazette-Mail investigation revealed that just 40 doctors were responsible for more than one-fourth of the 2,300 cases of medical malpractice reported to the state’s Board of Medicine between 1993 and 2001. Analysis of medical negligence records found that, from 1992 to 2001, only 16 percent of Kentucky’s doctors were responsible for 100 percent of the medical malpractice there. These states are not unique.
It is clear that a small percentage of "bad-apple" doctors commit a large percentage of medical malpractice. One would think the profession and its insurers would weed out the repeat offenders. Not so.
Unlike auto insurers, most medical malpractice insurers don’t base premium rates on the doctor’s experience. In other words, good doctors — and far too many innocent patients who are injured or killed — pay for bad doctors.
So why a medical malpractice "crisis" now? Just like in the ’70s and ’80s, the economy has recently declined. Insurance company profits — mostly from investments — suffer from bad business decisions. St. Paul Insurance Co., for example, announced it was leaving the malpractice insurance business, claiming malpractice verdicts were a problem, but failed to mention it lost $108 million in the Enron debacle.
Insurers also play numbers games with rates. "As the economy enjoyed a magic carpet ride in the 1990s, insurers kept rates artificially low because they earned more money investing than by writing policies," concluded Medical Liability Monitor editor Carol Brierly Golin.
And what about claims that rising malpractice premiums force doctors to quit the profession or move out of state? A Philadelphia Inquirer investigation found no such trend in Pennsylvania. Nor is it true in West Virginia, New York, Mississippi, Nevada, Texas or other states where the claim has been made.
The negligence of bad doctors and the bad business decisions of insurance companies are not the fault of patients who are mistreated. Yet it is injured patients who will be punished if insurers and doctors succeed in limiting justice to help solve their self-inflicted troubles.
Leo V. Boyle is president of the Association of Trial Lawyers of America, which is based in Washington, D.C. Roger Felice of Spokane is president of the Washington State Trial Lawyers Association, which includes more than 3,500 plaintiff attorneys statewide.
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