Is Tort Reform in the Best Interests of the Public? The Numbers’ Don’t Lie and Insurance Company Exec’s agree It is in No One’s Best Interests, Except Insurers

Why do lobbyists still sell and legislators still buy the tort reform myth?

A 194-page briefing book published in December 2018 by the Center for Justice & Democracy at New York Law School packs a powerful punch when it comes to the controversial – and political – issue of tort reform.

Titled “Medical Malpractice: By the Numbers,” the document dispels the notion that insurance premiums will decline – and quotes insurance companies as saying so – if tort reform passes through the halls of Congress.

“The medical professional liability insurance industry is continuing its unprecedented run of consecutive profitable years in 2016,” the document states. “Never before has the industry witnessed such an unbroken string of annual favorable results, many of which were very favorable. If we apply the metaphor of sailing a ship to the medical professional liability industry, strong tailwinds and minimal waves have made for very smooth sailing during the past decade.”

The document explains that, during the past decade, several experts in the industry have opined that the proverbial following seas soon would subside and the market would change.

They’ve been dead wrong.

The insurance industry actually has been very candid in saying that tort reform will not affect premiums or the availability of insurance. The market is soft, and companies are making profits. Talk of a hard market belies the numbers.

“The concern over premium prices continues today, with physicians and politicians alike crying foul over what they perceive to be the escalating and debilitating cost of medical malpractice insurance,” the document states. “This perception has helped generate the impetus for dozens of federal and state legislative proposals aiming to curb what many sense are out-of-control costs. …Rather than focusing on the prevalence of malpractice itself, much of this legislation challenges a patient’s right to recover and leaves many of these patients vulnerable, especially those without income, such as the retired, homemakers, and children…. Not only would this legislation make lawsuits more difficult for plaintiffs, but the bills do not address the real source of the problems that they intend to solve. Premiums are not rising as claimed….”

To describe medical malpractice as a crisis or an epidemic is not only dishonest, it does a disservice to the American consumer.

If we protect the negligent party from paying their full share of damages– who will? Who will pay for the injured who go uncompensated? The answers are:

• Taxpayers through increased funding to Medicare, Medicaid and Social Security.
• Consumers who pay health insurance premiums; since health insurers will have to pay the cost of care and will get it back from insureds.
• Hospitals in the costs of treating the injured, but uninsured.
• Consumers who use hospitals and will have to fund some portion of the uninsured burden.

“Those who in recent years claimed that there is an ongoing crisis base that claim on anecdotes, unsupported assertions, and flawed data,” the document states. “When physicians are financially squeezed they might perceive malpractice premiums to be the culprit. In fact, when a physician’s income does not grow, fails to keep up with inflation, or declines altogether, the problem is not usually due to malpractice premiums; rather, the problem is more typically due to health insurers that clamp down on the size of physician fees and deny payment for services that they deem unnecessary. Malpractice premiums can be a convenient scapegoat for frustrated physicians.”

Here are more facts:

• Frivolous medical-malpractice cases that make it to a lawsuit are frivolous. The cost of taking on a medical negligence suit often are counted in the hundreds of thousands of dollars and attorneys who represent victims must pick the cases carefully because the time and cost investment is huge. Chief of Peditaric Cardiology at University of Massachusets Medical School:
• “Contrary to many doctors’ beliefs, there is no epidemic of frivolous lawsuits” and “when doctors make an actual mistake, the system is slightly biased in their favor.”
• Payouts in medical-malpractice cases are low in both size (dollar amount) and scope (quantity.) Public Citizen reports that the value of malpractice claims fell 22% between 2003 and 2015.
• A small percentage of doctors account for a large percentage of medical-malpractice payouts, the reason is incompetent practitioners rarely face consequences from state and federal medical boards.
• Medical-malpractice payouts are by no means arbitrary. Usually any payout results from the recognition there was error by the health care provider and the injuries are significant. Any delay of payment is usually because the amounts involved are significant and insurance companies want to earn as much as possible on their money before compensating the plaintiff.
• Tort reform will work to prevent non frivolous medical-malpractice cases from being heard. The only thing tort reform will do is deny compensation to those with righteous claims, enrich insurance companies and burden consumers with higher costs.
• Medical-malpractice cases do not clog the courts. In 2017, for example, family court filings (divorce) and criminal cases far exceeded civil cases. Of civil cases filed, by far the more time consuming and resource draining for the courts are lawsuits in which corporations are suing corporations.
• The civil justice system in place today is works; not perfectly, but it works well. Juries generally arrive at the correct decision and it is, in fact, regular people who can be trusted to weigh information, witnesses and evidence and render a fair result.

The Briefing Book saves the most fitting fact for last.

“The best way to reduce malpractice litigation is to reduce the amount of malpractice,” it states.

If Citizen A hits Citizen B in his or her car negligently, the law permits Citizen B to collect from Citizen A – no caps on damages and no caps on attorney’s fees. Why should special-interest groups like doctors and hospitals be a special class of citizen?

“Stripping away patients’ legal rights will not lower (and may increase) health care costs; “tort reform” does not reduce medical tests and procedures (“defensive medicine”),” the document states. “Studies establishing “defensive medicine” are unreliable. “Defensive medicine” is Medicare fraud. The real reason doctors order too many tests and procedures: workload and revenue.”