Tort Reform: Crisis or Inevitable Capitalism Courtney Fuhriman

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1 Tort Reform: Crisis or Inevitable Capitalism Courtney Fuhriman POLSC 300 Political Inquiry Sister Arnell October 28,

2 FUHRIMAN 2 You can t be pro- doctor and pro- patient and pro- plaintiff s attorney at the same time. (Zegart 2004) George Bush s assertion is exactly the dilemma the country faces today. Who do we support? Do we look to the suffering victims of sometimes fatal malpractice suits and attorneys who help these victims, or the poor doctors who are driven into bankruptcy or cannot be insured due to ridiculous penalties for malpractice? What is the true problem: too many errors in the medical field, or whiny patients with hotshot lawyers? Strong claims show that the crisis is in reality an inevitable fluctuation of insurance premiums that doctors blow out of proportion. This affirmation is difficult for others to swallow when doctors are up and moving out of state and hospitals are closing down due to malpractice costs. In a greatly stressed economy, tort reform is both a daunting risk and an attractive possibility. Pro Tort Reform: Lowering the Cost of Health Care In 2003, a hospital did not diagnose a nine- year- old boy his metabolic disease and paid dearly for it. The notoriously plaintiff- sympathetic jury awarded the boy an astronomical $70.9 million to compensate for the hospital s mistake. 1 Hospitals across the nation have experienced similar cases that have been extremely detrimental. Petty lawsuits and unreasonable amounts of damages like this occur all the time at different levels of the law, but malpractice suits are particularly detrimental to the defendant s pocketbook. Malpractice suits have driven doctors 1 Sharkey, Catherine M Unintended consequences of medical malpractice damages caps. New York University Law Review 80 (2) (05):

3 FUHRIMAN 3 out of states like Tennessee into states such as Texas that have damage caps. 2 Investigations show why many hospitals have held back some services or even shut down completely. 3 According to the Journal of Law, Medicine & Ethics, average annual malpractice costs per bed for hospitals in states with any cap are lower than those that do not have these caps. The cost of malpractice for states with caps was $4558 compared to $5868 per bed for those without them (Table 1). This $1310 difference is huge when multiplied by the number of patients per hospital. With a 95% significance interval, this study is very accurate. This same journal asserts that a $250,000 cap on non- economic damages would reduce federal deficits by $54 billion over the next 10 years in addition to lowering health care costs and physician premiums. Table 1 Results of Analysis Comparing States with Malpractice Damage Caps vs. no Caps ( ) N Mean Median 95% Conf. Level States with No Malpractice Caps Avg. Malpractice Costs per Bed 5,901 $5,868 $3,042 $5,606- $6,131 Avg. Hospital Financial Margin (%) 14, Avg. Malpractice Losses per Bed $3,995 $1,192 $3,551- $4,439 Self- Insurance Costs per Bed 1,010 $6,707 $3,767 $6,023- $7,391 Average Malpractice Premium per Bed 2,498 $4,558 $2,098 $4,145- $4,971 2 Nixon, Joseph Why doctors are heading for texas. Vol Ellington, Charles R., Martey Dodoo, Robert Phillips, Ronald Szabat, Larry Green, and Kim Bullock State tort reforms and hospital malpractice costs. Journal of Law, Medicine & Ethics 38 (1) (Spring2010):

4 FUHRIMAN 4 States with any Malpractice Caps Avg. Malpractice Costs per Bed 2,498 $4,558 $2,098 $4,145- $4,971 Avg. Hospital Financial Margin (%) 5, Avg. Malpractice Losses per Bed 594 $3,879 $991 $2,798- $4,960 Self- Insurance Costs per Bed 361 $5,167 $2,525 $4,288- $6,045 Avg. Malpractice Premium per Bed 2,265 $3,186 $1,627 $2,908- $3,463 Texas is the first of all the states that tried this tort reform with damage caps and it has been remarkably successful for that state. Eight years ago, Texas passed its first tort reform and has since then enacted one more policy. These new laws cap malpractice awards for noneconomic damages at $250,000 and changed the burden of proof for claiming injury for emergency room care from simple negligence to willful and wanton neglect, and required that an independent medical expert file a report in support of the claimant. Within a few years, an influx of about 7,000 M.D.s uprooted their practices in other states and moved to Texas. This was beneficial to the economy with the creation of more jobs by enticing more doctors. Other states like California, Kansas, and Idaho have since made similar damage limits. For Texas, these new laws have lowered insurance premiums significantly and saved practitioners in the medical field millions of dollars. One example is the Texas Medical Liability Trust, which happens to be one of the main insurance corporations in Texas. Its rates have plummeted 35%, which means some $217

5 FUHRIMAN 5 million over four years that doctors don t have to spend on frivolous suits. 4 Tort reform could be a positive thing for underserved areas such as more rural locations in the states. In Texas, one rural area had an increase in M.D.s of 52% (Nixon 2008). The same study from the Journal of Law, Medicine & Ethics showed a 95% significant correlation between lower malpractice costs with caps in rural areas. This is good news for patients in desperate need of doctors in those places. Since it is so expensive for doctors to move locations, it is important to entice doctors fresh into the field to practice in these underserved rural areas. 5 Furthermore, hospitals and charities can provide more for their patients without these extra costs for malpractice. Christus Health, a Catholic nonprofit organization, has been able to save $100 million in the last four years from this benefit of tort reform (Nixon 2008). With so many underprivileged people in America and health care suffering as it is now, it is essential for hospitals and charities to provide for their patients as much as possible. Con Tort Reform: Protecting Victims of Malpractice While helping our nation s health care system is all well and good, it is also important to understand the individual patients lives that will be affected by placing caps on malpractice suits. Jacqueline Smith was one of these victims who 4 Ellington, Charles R., Martey Dodoo, Robert Phillips, Ronald Szabat, Larry Green, and Kim Bullock State tort reforms and hospital malpractice costs. Journal of Law, Medicine & Ethics 38 (1) (Spring2010): Chou, CF, L., C. F. Chou, and AT Lo Sasso. Practice location choice by new physicians: The importance of malpractice premiums, damage caps, and health professional shortage area designation. Health Services Research 44 (4):

6 FUHRIMAN 6 suffered terribly. After caring for her mother for an extended period of time, Smith placed her mother in a local nursing home so that she would never have to leave the Alzheimer patient unattended. Not long after her mother s admittance, Smith was appalled to hear that the poor 85- year- old woman had been cruelly raped by one of the nursing attendants. My mother became my daughter. It was like having my young daughter assaulted. And it s been extremely difficult. (Zegart 2004) Tragically, because of these tort reform laws, Smith would have to spend thousands for a lawyer and expert witnesses to sue for a capped amount. After all her mother s pain and suffering in addition to the mounting evidence against the nursing home for hiring a sex offender, plus suing the man himself, Smith s best- case scenario would be an award of $50,000. Besides, a law firm might not even accept her case due to the fact that, in light of tort reform, law firms are now weeding out many cases that they would once have deemed very important. These caps are proving to disproportionately burden certain types of plaintiffs such as the elderly (Smith s mother) and children who rely heavily on the pain and suffering portion of damages awards to obtain adequate compensation because they do not have the incomes that other plaintiffs do. 6 Before these caps were instated, most frivolous affairs weren t even amounting to $250,000, which means that these caps aren t even affecting those suits, but the ones that involve plaintiffs who were seriously wronged. Additionally, these caps have not been fixed according to inflation. California s MICRA (Medical Injury Compensation Reform 6 Studdert, DM, Y., D. M. Studdert, Y. T. Yang, and M. M. Mello. Are damages caps regressive? A study of malpractice jury verdicts in california. Health Affairs 23 (4):

7 FUHRIMAN 7 Act) was passed in 1976 and nothing has been changed about it even though it was instated over 30 years ago. 7 Though the term crisis might suggest a vast amount of million dollar lawsuits, most undeserving claims disappear before trial; most trials end in a verdict for the doctor; doctors almost never pay claims out of their own pockets; and hospitals and insurance companies refuse to pay claims unless there is good evidence of malpractice. (Tom 2005) So, the only parties that are truly cheated are the victims when they are not justly compensated. Studies show that 1 out of every 100 hospital admittances are victim to some form of malpractice (Annas 1989) and for almost 100,000 people each year, this malpractice is actually fatal. This number is higher than the combined amount of fatalities from auto and workplace incidents. (Tom 2005) Most patients never even reach court. Of those that suffer from malpractice, only between 1 in 25 and 1 in 50 of these is ever compensated through the current system. (Annas 1989) So, it is fair to say that tort reform is clearly faulty. Even if one did not even consider the suffering patient side of this issue, there are still obvious problems with the ideals behind reform. One issue is whether malpractice suits are really the root of the problem, or if it has more to do with insurance premiums, which will ebb and flow with the waves of America s capitalist free market. The current crisis is not the first; there were three more in the 1970s, 1980s, and 2000s. (Tom 2005) One example of this occurrence is the skyrocketing premiums from The economy was not thriving at the time because of factors 7 Weinstein, L., and L. Weinstein. A multifacited approach to improve patient safety, prevent medical errors and resolve the professional liability crisis. American Journal of Obstetrics and Gynecology 194 (4):

8 FUHRIMAN 8 such as interest rates and the 9/11 attacks. At this time, medical malpractice premiums shot up along with the whole property and casualty insurance business. Sometimes the natural flow of capitalism can be mistaken for an independent variable causing a change in variables such as these malpractice premiums when in reality, it is not. 8 Now, this does not mean that these malpractice suits have absolutely nothing to do with insurance premiums; insurance companies need to keep pace with increases in litigation expenses and unrealistic jury verdicts. (Annas 1975) They just don t play as large a role as this crisis implies. Furthermore, other factors not even highly considered could be influencing these suits as well. There are inevitably going to be more problems with malpractice as the medical arena expands with new technology, methodology, and drug development. Patients have lost trust in doctors in recent years and are quick to catch mistakes. With such a large field, it is extremely difficult to mitigate these mistakes. 9 In light of both sides of the argument, the truth of the matter is exposed: patients must be protected from doctors and hospitals coming up short on health care, and at the same time, America s health facilitators shouldn t be subject to over- the- top jury rulings that clearly overstep the bounds of the issue. Logically speaking, just a single unfair lawsuit could put a doctor or even an entire hospital in great 8 Tom, Baker 1959, and Tom Baker The medical malpractice myth, ed. Inc ebrary. Chicago: Chicago : University of Chicago Press. 9 Fielding, Stephen L., and Stephen L. Fielding. The social construction of the medical malpractice crisis: A case study of massachusetts physicians. Sociological Forum 5 (2):

9 FUHRIMAN 9 financial trouble, even out of business. However, there is also a risk on the other hand with patients lives that need to be protected under the principle of tort law. With past and present presidents toying with the idea of federal tort reform and many state laws passing for this issue, it is extremely prevalent in today s society as a potential change that could greatly affect the economy and day- to- day life.

10 FUHRIMAN 10 Bibliography Annas, George J., and George J. Annas The rights of patients : The basic ACLU guide to patient rights, eds. George J. Annas, American Civil Liberties Union. Totowa, N.J.: Totowa, N.J. : Humana Press. Chou, CF, L., C. F. Chou, and AT Lo Sasso. Practice location choice by new physicians: The importance of malpractice premiums, damage caps, and health professional shortage area designation. Health Services Research 44 (4): Ellington, Charles R., Martey Dodoo, Robert Phillips, Ronald Szabat, Larry Green, and Kim Bullock State tort reforms and hospital malpractice costs. Journal of Law, Medicine & Ethics 38 (1) (Spring2010): Fielding, Stephen L., and Stephen L. Fielding. The social construction of the medical malpractice crisis: A case study of massachusetts physicians. Sociological Forum 5 (2): Nixon, Joseph Why doctors are heading for texas. Vol Sharkey, Catherine M Unintended consequences of medical malpractice damages caps. New York University Law Review 80 (2) (05): Studdert, DM, Y., D. M. Studdert, Y. T. Yang, and M. M. Mello. Are damages caps regressive? A study of malpractice jury verdicts in california. Health Affairs 23 (4): Tom, Baker 1959, and Tom Baker The medical malpractice myth, ed. Inc ebrary. Chicago: Chicago : University of Chicago Press. Weinstein, L., and L. Weinstein. A multifacited approach to improve patient safety, prevent medical errors and resolve the professional liability crisis. American Journal of Obstetrics and Gynecology 194 (4): Zegart, Dan The right wing's drive for 'tort reform'. Nation 279 (13) (10/25):

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