The Medical Malpractice Crisis: The Product of Insurance Companies and a Threat to Women's Health

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1 The Medical Malpractice Crisis: The Product of Insurance Companies and a Threat to Women's Health Melissa Patterson* I. Introduction A burning question currently exists as to whether a medical malpractice liability insurance crisis is at hand; and if one is, what the United States should do about it. From coast to coast, U.S. doctors, lawyers, insurance companies, legislators, and patients are debating whether states should enact limitations on jury awards in medical malpractice cases. Specifically, the debate centers around whether states should enact non-economic damage caps or if states that currently provide for such limitations should change their existing laws. 1 This debate has been furthered by research conducted by the federal government and professional organizations. This impetus for change is due to an outcry from the medical field and the insurance industry that large jury awards are driving insurance companies out of business and raising doctors' malpractice premiums to unattainable levels. In addition, physicians and insurance companies agree with the sentiment expressed by Dr. Mark Olesnicky, president of the Medical Society of New Jersey, who described the implementation of non-economic damage caps as "taking away [a trial attorney's] candy store," blaming the increases of medical malpractice premiums * J.D., Quinnipiac University School of Law (expected May 2005), B.A. Sociology, American University (2000). Lead Notes and Comments Editor, Quinnipiac Health Law Journal. I would like to thank Professor W. John Thomas and student editors Meghan Kantor andjill Alward for their guidance and advice in the completion of this paper. I would also like to thank my parents, Robert and Lynne, and my fianc~e,josh, for their patience, love and constant support. I Non-economic damages attempt to compensate plaintiffs for "pain and suffering, emotional distress, loss of consortium or companionship, and other intangible injuries." American Tort Reform Association, Tort Reform Record 29, Dec. 31, 2003, available at (last visited Aug. 12, 2004).

2 QUINNIPIAC HEALTH LAW [Vol. 8:109 on attorneys' fees and court costs. 2 Physicians and insurance companies also claim that high jury awards have disproportionately affected high-risk medical specialties such as obstetrics, a field which saw a 20% increase in malpractice liability insurance rates in 2003.' Many states have listened to these arguments. In 2003, thirty-four states reviewed their current tort systems and considered malpractice reforms. 4 Of the thirty-four states, eleven adopted various laws regarding damage liability. 5 On its face, an easy answer to this problem would seemingly be to limit damage awards. Doing so, however, would require that other data be ignored. This data directly conflicts with the claims of many proponents of non-economic damage caps. In fact, some evidence concludes that no medical malpractice insurance crisis exists at all. This data also indicates that if a crisis does exist, it has been caused by physicians leaving the field due to an increase in premium rates by insurance companies trying to cover the huge losses they suffered from poor investments and a bad economy.' The purpose of this Note is to show that insurance companies are shifting the burden for their poor investments onto physicians, and ultimately onto patients, through premium increases to make up for their investment activity losses. The increase of malpractice premiums has given many physicians an excuse to leave or reduce their practices. Moreover, this Note will show that the current malpractice insurance rates, coupled with noneconomic damage caps, discriminate against women in their ability to get adequate health care and recovery for damages in malpractice suits. 2 Doctors Agree with Federal Study that Shows Lawsuit Caps Keep Doctors in States, BESTAIRE, July 21, Fred J. Hellinger, Ph.D. & William E. Encinosa, Ph.D., The Impact of State Laws Limiting Malpractice Awards on the Geographic Distribution of Physicians, U.S. Dep't of Health & Human Services, at 2 (2003) (including abstract), available at ww.ahcpr.gov/research/tortcaps/tortcaps.pdf (last visited Aug. 4, 2004). 4 National Conference of State Legislatures, Health Policy Tracking Service Issue Briefs Summary - Medical Malpractice: Tort Reform, 4 (2003), available at (last visited Aug. 4, 2004). 5 Id. 6 See generally Daniel Eisenberg et al., The Doctor Won't See You Now, TIME, June 9, 2003, at 46.

3 2004] THE MEDICAL MALPRACTICE CRISIS Section II provides a brief history of the medical malpractice insurance crises of the 1970s and 1980s. These decades share similar characteristics with the present-day malpractice insurance situation. The actions taken in the s and 1980s to stabilize premiums have been proposed as solutions today. Section III outlines the positions which certain states and organizations have taken in response to the current "crisis." This section shows what steps states have already been taken with regard to non-economic damage caps. It also outlines the arguments that the American Medical Association, the American Bar Association, the American College of Obstetricians and Gynecologists, and three studies conducted by the federal government have asserted with respect to non-economic damage caps. In addition, a brief outline of California's longstanding limitation on non-economic damages is included inasmuch as California has become a model for those advocating damage caps. Section IV shows that there is some credence to the data claiming that no widespread crisis exists. This section will show that there does appear to be an absolute strain on medical professionals to pay their increased premiums which, in turn, is affecting these professionals' ability to treat patients. Evidence presented in this section will show that this is caused, in part, by insurance companies wishing to remain competitive and maintain low premiums at a time when claims were rising and premiums should have been increased to reflect those changes. This section will further show that damage caps adversely affect women's ability to obtain proper obstetrical care since obstetrics, as a high-risk specialty, has been hit particularly hard by the increase in malpractice premiums. If non-economic damage caps are in place, recovery for women will be far more restricted than it would be for a male malpractice victim since women tend to be awarded more non-economic damages than men. In conclusion, this Note recommends finding alternatives to damage caps due to the disproportionate effect damage caps have on women and the lack of consensus regarding the cause of the increase in malpractice premiums.

4 QUINNIPIAC HEALTH LAW [Vol. 8:109 Il. Medical Malpractice Crises of the 1970s and 1980s The tort of medical malpractice has a history which extends far beyond the system within which doctors and lawyers practice in modern times. As far back as 2030 B.C., the code of King Hammurabi stated, " [i] f the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die, or has opened the abscess of the eye of a gentleman with a bronze lancet, and has caused the loss of the gentleman's eye, one shall cut off his hand." 7 Under this model, "only the result mattered, not the doctor's conduct." ' This strict view of medical malpractice has changed drastically since that time. Today, the standard of care that a physician must maintain is "that degree of skill and learning ordinarily possessed and exercised, under similar circumstances, by the members of his profession in good standing, and to use ordinary and reasonable care and diligence, and his best judgment, in the application of his skill to the case." 9 A medical malpractice claim is comprised of the following elements: "establish [ing] the existence of a physician-patient relationship giving rise to a duty; [d]emonstrat[ing] that the applicable standard has been violated; [e]stablish[ing] injury or damage; and [d]evelop[ing] a causal relationship between the violation and the alleged harm."'" Despite the long world history of medical mistakes, medical malpractice claims were not a significant part of the American tort litigation system until the 1970s. 1 1 Thereafter, the U.S., in the 1970s and 1980s, suffered from separate medical malpractice insurance crises due in part to the withdrawal of some insurance companies from the business of medical malpractice insurance coverage. 2 Essentially, during these cycles, medical malpractice insurance was considered by some to 7 Melvin M, Belli, Sr., J.D., The Evolution of Medical Malpractice Law, in LEGAL As- PECTS OF MEDICINE 3 (J.R. Vevaina et al. eds., Springer Verlag 1989). 8 Id. 9 Herbert Dicker, J.D. & Jeffrey D. Robertson, J.D., The Defense of a Malpractice Case, in LEGAL ASPECTS OF MEDICINE 17 (J.R. Vevaina et al. eds., Springer Verlag 1989). 10 J.D. LEE & BARRY A. LINDAHL, MODERN TORT LAW 25:1 (2d ed. 2002). I 1 Frank M. McClellan, MEDICAL MALPRACTICE: LAW, TACTICS AND ETHICS 79 (1994). 12 Alan Feigenbaurn, Note, Special Juries: Deterring Spurious Medical Malpractice Litigation in State Courts, 24 CARDozo L. REv. 1361, 1363 (2003); see Donald M. Taylor et al., One State's Response to the Malpractice Insurance Crisis: North Carolina's Obstetrical Care Incentive Program, 107 PuB. HEALTH REP. 523 (1992).

5 2004] THE MEDICAL MALPRACTICE CRISIS be "technically available" but "functionally unavailable.' 1 3 In response, legislatures enacted tort reforms to combat these crises, in part, to "chill" plaintiffs' interests to sue. 14 Reforms were created in the 1970s to address fears that the number of medical malpractice claims would leave patients without necessary medical services. 5 Many physicians reacted to the withdrawal of some medical malpractice insurers by creating "physician-sponsored malpractice insurers."16 In contrast, the 1980s presented a different problem. Medical malpractice insurance was more readily available; however, premiums had increased, affecting obstetrics in particular. 7 Additionally, the increased costs of liability insurance affected not only the medical field, but also businesses and municipalities. 8 In response, in 1986, various state legislatures enacted non-economic damage limits ranging from $250,000 to $875, Despite insurance companies, corporations, and the Reagan Administration defending these tort reforms in order to combat the liability insurance crises, consumer advocates questioned whether these reforms were only established to increase the insurance companies' profits. 2 1 In fact, the constitutionality of such reforms was questioned. Common claims included violations of the constutitionally-protected rights of "due process, equal protection and jury trial." 2 ' In deciding these cases, courts have used either a rational basis test or substantial relationship test. 2 2 For example, in 1983, the Supreme Court used a rational 13 Sandy Martin, M.D., Note and Comment, NICA - Florida Birth-Related Neurological Injury Compensation Act: Four Reasons Vhy This Malpractice Reform Must Be Eliminated, 26 NOVA L. REV. 609 (2002) (quoting Thomas R. Tedcastle & Marvin A. Dewar, Medical Malpractice: A New Treatment for an Old Illness, 16 FLA. Sr. U. L. REV. 535, 547 n.90 (1988)). 14 David M. Studdert, LL.B, Sc.D., M.P.H. & Troyen A. Brennan, M.D., J.D., M.P.H., Toward a Workable Model of "No-Fault" Compensation for Medical Injury in the United States, 27 AM. J.L. & MED. 225 (2001). 15 Christopher T. Stidvent, Note, Tort Reform in Alaska: Much Ado About Nothing?, 16 AIsiKA L. REV. 61, 67 (1999). 16 Randall R. Bovbjerg & Frank A. Sloan, No-Fault for Medical Injury: Theory & Evidence, 67 U. CIN. L. Rhv. 53, 61 (1998). 17 Donald M. Taylor et al., One State's Response to the Malpractice Insurance Crisis: North Carolina's Obstetrical Care Incentive Program, 107 PuB. HEALTH RaE. 523 (1992). 18 Stidvent, supra note Id. at Id. at McClellan, supra note 11, at McClellan, supra note 11, at 83. "Under the rational relationship test, the

6 QUINNIPIAC HEALTH LAW [Vol. 8:109 basis test in reviewing legislation created in 1981 in response to the medical malpractice insurance crisis of the 1970s. 23 The Court determined, under the rational basis test, that no medical malpractice crisis existed to justify Rhode Island's medical malpractice tort reforms. 24 However, in reviewing reforms under the rational basis test, most courts have found them to have a "legitimate purpose...in ensuring an adequate health care 25 system. Despite the numerous changes States have made in response to the crises of the 1970s and 1980s, a decade later the United States has found itself in a similar situation again. Ill. Are We Currently Facing a Medical Malpractice Insurance Crisis? Today, many in the medical, insurance and legal communities have determined that the United States is suffering its third wave of a medical malpractice insurance crisis. 2 " Conversely, studies have shown that the "crisis" is not as widespread as some organizations and professionals have claimed. 27 Further, there is dispute as to what the cause of this crisis is and if it does in fact exist. 2 ' The current debate can be summed up as follows: Supporters...maintain that [non-economic damage caps] reduce[ ] malpractice premiums and help[ ] insure an adequate supply of physicians. They also assert that escalating, multi-million-dollar jury awards are driving malpractice pre- [court] limits its analysis to whether the government classification has a rational relationship to a legitimate government interest." Cheryl A. C. Brown, Comment, Challenging the Challenge: Twelve Years After Batson, Courts are Still Struggling to Fill in the Gaps Left by the Supreme Court, 28 U. BALT. L. REv. 379, 386 (1999). The second test requires "the government classification... [to] have a substantial relationship to an important government interest." Id. at Boucher v. Sayeed, 459 A.2d 87 (R.I. 1983). 24 Id. at McClellan, supra note 11, at See generally The Medical Liability Crisis: Talking Points, AM. MED. ASS'N, Jan. 21, 2003 (on file with author); see also Press Release, The American College of Obstetricians and Gynecologists, ACOG Response to GAO Report on Liability Crisis (Sept. 25, 2003) available at 03.cfm (last visited Aug. 6, 2004) [hereinafter ACOG Press Release]. 27 See generally U.S. GENERA! ACCOUNTING OFFpcp: REPORT TO CONGRESSIONAL RE- QtIEsTERS, GAO , Aug. 2003, available at /gao%20malpractice.pdf (last visited Aug. 6, 2004). 28 Conn. Governor Proposes Caps on Med-Mal Awards, BEsTwiRE, Sept. 18, 2003.

7 2004] THE MEDICAL MALPRACTICE CRISIS 115 mium increases and that capping damage awards for pain and suffering helps restrain the rate of increase. Without such law, it is asserted that the loss of affordable medical malpractice insurance for physicians could eventually lead to the loss of affordable, accessible health care. Opponents of this legislation [generally] maintain that insurance companies are trying to compensate for poor business decisions and fading investment income. 29 A. States' Evaluation of the Malpractice Insurance Crisis In 2003, eleven states made changes to their tort laws regarding liability for medical malpractice damages." Of those states, four states, Florida, Idaho, Nevada, and Texas, enacted or changed the laws governing non-economic damage caps. 1 Florida created a $500,000 non-economic damage cap per individual physician in malpractice lawsuits." Florida also placed a freeze on medical malpractice insurance premiums sold in that state from July 1, 2003 until January 1, 2004.? Idaho reduced the non-economic damage award cap for personal injury cases from $400,000 to $250,000, subject to change by the Idaho Industrial Commission. Nevada capped non-economic damages in medical malpractice cases at $350,000." 5 Additionally, Nevada law now requires 120 days notice before that malpractice insurer can withdraw from the market when the withdrawal of a malpractice insurer will affect a physician's access to malpractice coverage. 3 6 Fur- 29 Hellinger & Encinosa, supra note 3, at 1. 3o These states were "Arkansas, Florida, Idaho, Montana, Nevada, New Hampshire, New York, Ohio, Texas, Utah and West Virginia." National Conference of State Legislatures, supra note Id. 32 National Conference of State Legislatures, supra note 4, 1 5; see American Tort Reform Association, Tort Reform Record 30, Dec. 31, 2003, available at (last visited Aug. 12, 2004) [hereinafter Tort Reform Record]. 33 National Conference of State Legislatures, supra note 4, National Conference of State Legislatures, supra note 4, Tanya Albert, Nevada Enacts Bold Tort Reforms, AMEDNEWS.COM, August 26, 2002, available at htm (last visited Aug. 8, 2004); see American Tort Reform Association, Tort Reform Record 32, Dec. 31, 2003, available at (last visited Aug. 12, 2004). 36 National Conference of State Legislatures, supra note 4, 8.

8 QUINNIPIAC HEALTH LAW [Vol. 8:109 ther, the state may require that the insurer wait an additional sixty days before withdrawing from the state. 37 Nevada also specifically "prohibit[ed] insurers from increasing malpractice insurance premium rates because of investment losses."" Texas enacted a law which would limit non-economic damages to $250,000 as to individual medical providers in malpractice cases. 39 A great incentive for such legislation came, in part, from the Texas Liability Trust ("TLT").40 TLT promised to reduce doctors' malpractice insurance rates by 12% for their insured, which make up one-third of those doctors practicing in Texas. 41 Prior to 2003, several other states had enacted legislation to limit non-economic damage caps. In 1975, California adopted a non-economic damage cap in medical malpractice cases in the amount of $250,000,42 a limit which other states have subsequently adopted. 43 Also in 1975, Indiana set a total damage cap for medical malpractice cases at $750,000, but reduced the health care provider liability to no more than $250,000." 4 Utah and West Virginia both provide for an increase in the $250,000 limit based on inflation, but West Virginia does not allow the increase to rise above $375, In 1986, Hawaii adopted a non-economic damage cap of $375, Several states with non-economic damage caps have increased their stated cap or have provided that their non-economic damage cap is adjustable for inflation. For example, 37 Id. 38 Id. 39 Id. 13; see American Tort Reform Association, Tort Reform Record 33, Dec. 31, 2003, available at (last visited Aug. 12, 2004). 40 The TLT was created in 1979 as a nonprofit "health care liability claim trust owned by its Texas physician policyholders" to "offer a source of affordable and stable medical liability insurance" for their physicians. Texas Medical Liability Trust, About TMLT, at (last visited November 2, 2004) 41 National Conference of State Legislatures, supra note 4, Cal. Civ. Code (Deering 2003). 43 Other states that have adopted such a limit include the following: Colorado, Indiana, Kansas, Montana, Utah and West Virginia. ADvocAcyv REs. CTR., AM. MED. Ass'N, State Laws Chart L- Liability Reforms, June 17, 2003, (on file with author) [hereinafter State Chart 1]. 44 I. 45 Id. Utah first enacted its legislation in 1986 and later in 2001, whereas West Virginia did not enact its legislation until Id. 46 d.

9 2004] THE MEDICAL MALPRACTICE CRISIS Wisconsin adopted a non-economic damage cap of $350,000, which is adjustable for inflation. 47 Michigan's original non-economic damage cap of $280,000 was increased for inflation to $349,700 in Although Missouri's non-economic damage cap was set at $350,000 in 1986, that state increased its cap to $557,000 as of February 1, Despite its original adoption of a $250,000 limit in 1986, Colorado has increased its damage amount to $300,000, effective July 1, Nebraska, New Mexico, South Dakota, Virginia, and Louisiana have also placed limitations on total or general damages. 5 " Other states with non-economic damage caps have limited the caps to certain specialities or set up other creative systems to limit caps without setting an actual dollar amount. For example, Oklahoma limited its non-economic damage cap of $300,000 to apply only to obstetrical and emergency room care. 52 Ohio created a formula for determining non-economic damage caps which is either $250,000 or three times the amount of the economic damages, whichever is greater, up to the amount of $350,000." Alaska allows an award for non-economic damages in the amount of either $400,000 or $8,000 times the victim's life expectancy, whichever is greater. 5 4 Maine has adopted a noneconomic damage limit of $400,000, which only applies to wrongful death cases. 55 Massachusetts, Mississippi, and North Dakota have each adopted non-economic damage caps in the amount of $500, Massachusetts and Mississippi legislation indicates there are cases where this limit would not apply. Of 47 State Chart 1, supra note 43; see American Tort Reform Association, Tort Reform Record 34, Dec. 31, 2003, (last visited Aug. 12, 2004). Wisconsin enacted tort reform legislation starting in 1979, while making changes to it through the 1990s. State Chart I, supra note State Chart, supra note Id. 50 Id.; see American Tort Reform Association, Tort Reform Record 29, Dec. 31, 2003, recordl2-03.pdf (last visited Aug. 12, 2004). "p1 State Chart 1, supra note American Tort Reform Association, Tort Reform Record 33, Dec. 31, 2003, available at (last visited Aug. 12, 2004). 53 State Chart I, supra note Id.; see American Tort Reform Association, Tort Reform Record 29, Dec. 31, 2003, available at (last visited Aug. 12, 2004). 55 State Chart I, supra note d.

10 QUINNIPIAC HEALTH LAW [Vol. 8:109 the two states, however, only Mississippi allows for an adjustment for inflation." Maryland caps its non-economic damages for wrongful death at $500,000 and provides for inflation adjustment in the amount of $15,000 per year." Thus, by October 1, 2002, Maryland's damage cap was $620, Despite the number of states that have adopted caps or are contemplating them, several states have found that non-economic damage caps are unconstitutional or have provisions in their state constitutions which specifically prohibit them. 6 " States have been, in part, swayed by individual physician activism on this subject. Doctors from New Jersey, Pennsylvania, New York, Illinois, Connecticut, and West Virginia have been staging walkouts and rallies with regards to the state of present malpractice premiums." The famous ten-day closure of a trauma center in Las Vegas, Nevada, which services 11,000 people a year, was the poster child for the Nevada medical malpractice reform. 62 The closure, however, resulted from insured medical professionals walking out on the trauma center to protest medical malpractice insurance increases as a means to have legislators sit up and take notice. 63 Finally, the general perception of states enacting these reforms is that "too much is being spent both on the injured parties... and on getting compensation to the parties." '64 i. The California Model It is vitally important to look at what changes California has made in the last thirty years to reform medical malpractice in a discussion of non-economic damage caps because many states contemplating reform cite California's Medical Injury Compensation Reform Act of 1975 ("MICRA") as a model. 6 " The use of 57 id. 58 Id. 59 Id. 60 State Chart I, supra note 43. These states are Arizona, Oregon, Pennsylvania, and Washington. 61 Joan R. Rose, Liability Premiums Send Physicians Marching; focus on Practice, MED. ECON., June 6, Garry Boulard, The Doctors'Big Squeeze, ST. LEGISLATURES MAG., Dec. 2002, available at (last visited Aug. 6, 2004). 63 Id. 64 FRANK A. SLOAN ET AL., SUING FOR MEDICAL MALPRACICE 3 (1993). 65 Hellinger & Encinosa, supra note 3, at 3.

11 2004] THE MEDICAL MALPRACTICE CRISIS the California model is not without merit. Between 1975 and 2000, medical malpractice insurance rates in California grew only 167%, while rates in the rest of the country grew 505%.66 During the 1970s, insurance premiums increased by over 400% in two years in California.1 7 The California legislature responded to this increase by enacting MICRA. 68 MICRA dealt with the "procedural aspects of professional negligence actions against physicians and other health care providers" 69 by, inter alia, limiting non-economic damages in medical malpractice cases in the amount of $250,000.0 The provision of MICRA limiting non-economic damages in medical malpractice cases was upheld in 1985 in Fein v. Permanente Medical Group. 7 " In Fein, Mr. Fein claimed that were it not for a late diagnosis by certain physicians, his resulting heart attack could have been prevented or lessened in its residual effects. 72 The jury awarded Mr. Fein $500,000 in non-economic damages, which was later reduced to $250,000 by the trial court based on MICRA. 73 On appeal, Fein raised several constitutional objections, including violations of his due process and equal protection rights." Under Fein's claim for due process rights violations, the court first reiterated the well settled law that "a plaintiff has no vested property right in a particular measure of damages." 75 Further, the court maintained that the "[1legislature retains broad 66 Id. Examples of the strong effect the California model has had on state legislatures can be seen from coast-to-coast. Before leaving office in July of 2004, the former governor of Connecticut, John Rowland, endorsed a non-economic damage limit for medical malpractice cases in the amount of $250,000 to combat a large increase in medical malpractice insurance that was expected to occur in October, Conn. Governor Proposes Caps on Med-Mal Awards, supra note 28; CT: Rowland Against Federal Takeover of Child Services Office, THE BULL.'s FRONTRUNNER, Sept. 17, 2003, at 1. In Nevada, the president of the Physician Insurance Association of America was disappointed with the new law which limited non-economic damages to $350,000, claiming that it fell "short of MICRA... Albert, supra note Boulard, supra note CAL. TORTS 31.02[1] (Matthew Bender & Co. 2003). 69 Id. 70 Fein v. Perrnanente Med. Group, 695 P.2d 665, 679 n.13 (1985). 71 Id. 72 Id. at Id. at Id. at 679, Fein, 695 P.2d at 679 (citing Am. Bank & Trust Co. v. Cmty. Hosp. of Los Gatos- Saratoga, Inc., 683 P.2d 670 (1984)) (italics omitted).

12 QUINNIPIAC HEALTH LAW [Vol. 8:109 control over the measure...[and] timing, of damages that... a plaintiff is entitled to receive, and...[it] may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest."76 Under a rational basis analysis, the appellate court noted that the legitimate state interest was the increased cost of medical malpractice insurance and the "real possibility" that it would affect medical care by either doctors leaving their fields or practicing without insurance. 77 The court held that the legislation was rationally related to this state interest because this could leave "patients who might be injured by such doctors with the prospect of uncollectible judgments." 7 The appellate court also held that a cap on non-economic damages was rationally related to the interest of reducing the cost of medical malpractice insurance itself. 7 " Mr. Fein also made a claim that the non-economic damage cap violated his equal protection rights because the section pertained only to victims of medical malpractice and not other tort victims." 0 The appellate court, in dismissing this claim, cited its previous discussion of the due process violation claim and, again, held that the legislature was "responding to an insurance 'crisis' in that particular area and that the statute... [was] rationally related to the legislative purpose."81 In addition, the court and the legislature identified the problem of "unpredictability of the size of large [non-economic] damage awards, resulting from the inherent difficulties in valuing such damages and the great disparity in the price tag which different juries place on such losses. 8s2 Therefore, the appellate court held that "[t]he [1legislature could reasonably have determined that an across-the-board limit would provide a more stable base on which to calculate insurance rates." 8 3 Since Fein, the California courts have applied the $250,000 limit on "each separate and independent claim based on a negli- 76 Id. (italics omitted). 77 Id. 78 Id. (italics omitted). 79 Id. (italics omitted). 80 Fein, 695 P.2d at 682 (italics omitted). 81 Id. (italics omitted). 82 Id. at 682 (italics omitted). 83 Id. at 683 (italics omitted).

13 2004] THE MEDICAL MALPRACTICE CRISIS gent act." 84 In Colburn v. United States, 8 5 the court held that $250,000 was the maximum recovery for one plaintiff. 86 In that case, Mr. and Mrs. Colburn each sued on various claims for the death of their twin children which occurred a few hours after the twins' birth. 87 The court concluded that "MICRA provides a $250,000 maximum aggregate recovery for a single plaintiff." 88 Therefore, Mr. and Mrs. Colburn, together, could only recover a maximum of $500, The California model may not justify its severe restrictions on medical malpractice victims. In 2000 "the average... premium per doctor in California was only 8.2 percent below that of the nation." 9 In addition, the amount which malpractice victims may now recover is significantly less than that of malpractice victims in 1975 because the $250,000 cap set in 1975 would equal $780,000 today if adjusted for inflation. 91 Despite this data and the harm these caps can have on malpractice victims, states prefer a bright line test, such as California's cap, for limiting damages rather than one which takes into consideration the fact that this limitation more harshly affects the cases of more severe medical malpractice or other facts and circumstances. B. American Medical Association's Evaluation of the Malpractice Insurance Crisis The American Medical Association ("AMA") has cited the following twelve states as suffering a medical malpractice crisis: Florida, Georgia, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Washington and West Virginia." In addition, the AMA claims thirty other states are on CAL. TORTS 31.50[2] [a] (Matthew Bender & Co. 2003). 85 Colburn v. United States, 45 F. Supp. 2d 787 (1998). 86 Id. at Id. at Id. at Id. 9o National Conference of State Legislatures, State Health Care Containment Ideas, July 2003, (last visited Aug. 8, 2004). 91 Douglas Waller, Why Nothing Gets Fixed; A Frustrated Lawmaker, TIME, June 9, 2003, at The Medical Liability Crisis: Talking Points, AM. MED. Ass'N, Jan. 21, 2003 (on file with author).

14 QUINNIPIAC HEALTH LAW [Vol. 8:109 the verge of such a crisis. 3 The AMA suggests that these problems are the result of high jury awards 94 and increasing liability insurance rates which are forcing "physicians to limit services, retire early, or move to a state with reforms where premiums are more stable." 9 As such, the AMA supports the adoption of non-economic damage limitations in order to stabilize "the liability insurance market by prohibiting excessive damage awards." 96 The AMA cites to California as a model for non-economic damage cap legislation and as proof that these limitations are effective. 9 7 C. American Bar Association's Evaluation of the Malpractice Insurance Crisis On the other hand, the American Bar Association ("ABA") has stated that the current wave of medical malpractice liability insurance problems have stemmed from losses due to insurance companies' bad investments which are subsequently passed on to the insured. According to ABA President Alfred P. Carlton, Jr., "a 50-year review of the investment cycle indicates that every time investment returns decline, insurance premiums increase." 96 Carlton goes on to deny there is any "credible evidence available to demonstrate any variable other than investment returns that affects insurance premiums." 9 " Carlton states that " [f]rom West Virginia to Louisiana to Missouri, caps on jury awards have failed to lower malpractice insurance premiums in states across the country."' 00 Based on this evidence, the ABA offers options to states other than non-economic damage caps including: providing state courts flexibility in overturning outrageous awards; disciplining attorneys who bring frivolous claims; and adopting a 93 Id. 94 ADvoCAcy RESOURCE CiR., AM. MED. Ass'N, Liability Reform: Common Provisions of State Tort Reform Laws, March 2002, available at ama/pub/catcgory/7470.html (last visited Aug. 6, 2004). 95 Id. 96 Id. 97 d. 98 Press Release, American Bar Association, Medical Malpractice Liability: A Case for Real Reform, (July 2003), available at july-oped.html (last visited Aug. 6, 2004) [hereinafter ABA Press Release]. 99 Id. 100 Id.

15 2004] THE MEDICAL MALPRACTICE CRISIS "'clear and convincing' evidence standard for punitive damages in all personal injury cases, including medical malpractice cases." 1 0 ' Finally, the ABA calls for the legal and medical communities to work together to find a solution to the medical malpractice problem.' 1 2 As Carlton has characterized it, "the problem with medical malpractice is not the tort system; the problem with medical malpractice is medical malpractice More of the focus should be on the damage medical malpractice is causing the patient rather than on the damage awards patients receive. D. American College of Obstetricians and Gynecologists' Evaluation of the Malpractice Insurance Crisis The American College of Obstetricians and Gynecologists ("ACOG") has cited the following states as being embroiled in a medical malpractice insurance crisis: Florida, Georgia, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Virginia and Washington. ' 4 Those states with a crisis "brewing" are: Alabama, Connecticut, Illinois, Kentucky, Missouri and Utah The ACOG used the following factors to come to this conclusion: the lack of available professional liability coverage for ob-gyns in the state; the number of carriers currently writing policies in the state, as well as the number leaving the medical liability insurance market; the combination of geographical, economic, and other conditions exacerbating an already existing shortage of ob-gyns and other physicians; the state's tort reform history, and whether tort reforms have been passed by the state legislature - or are likely to be in the future and subsequently upheld by the state high court The ACOG believes that tort reform is required to combat the increasing number of doctors that are leaving the profession; fight the proposed insurance rate increase of 125% startingjanuary 1, 2004; and solve the problem of only a small number of 11] Id. 102 Id. 103 ABA Press Release, supra note ACOG Press Release, supra note Id. 106 Id.

16 QUINNIPIAC HEALTH LAW [Vol. 8:109 medical students choosing to become ob-gyn residents.' 1 7 The ACOG points to a survey it conducted of its members in 2003 in which 27% of those surveyed stated to have cut back on their obstetrical practices.' The survey also found that 12% of those obstetricians cut back on their surgical practices because of what they have determined to be a "liability crisis."' 0 9 While certain studies have pointed to the absence of a medical malpractice insurance crisis, the ACOG challenges this assertion by claiming that the measure for whether a crisis exists depends on if women "have timely, meaningful access to quality health care." ' The ACOG posits that the increase in liability insurance has adversely affected a woman's ability to obtain quality obstetrical and gynecological care, thereby creating a medical malpractice liability insurance crisis. E. The Federal Government's Evaluation of the Malpractice Insurance Crisis The federal government has released three reports of note which address whether a medical malpractice insurance crisis exists and the possible causes for such a crisis. The United States Department of Health and Human Services ("HHS") issued two of the reports. The United States General Accounting Office ("GAO") issued the third report. The HHS reports concluded that non-economic damages caps have either been beneficial to the insurance crisis or, at least, have had a positive effect on the amount of doctors practicing in states with non-economic damage caps. 111 Conversely, the GAO report found that a medical malpractice insurance crisis does not exist Id. 108 Id. 109 ACOG Press Release, supra note Id. 111 OFFICE OF THE ASSISTANT SEC'Y FOR PLANNING & EVALUATION, U.S. DEP'T OF HEALTH & HuMAN SERVICES, Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care, March 3, 2003, /www.aspe.hhs.gov/daltcp/reports/medliab.pdf (last visited Aug. 6, 2004); Hellinger & Encinosa, supra note 3, at U.S. GENERAL AccouNTING OFFICE, supra note 27, at 5.

17 2004] THE MEDICAL MALPRACTICE CRISIS i. Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Health Care 13 The HHS report concluded that "[h]igher costs for defending claims, larger judgments, particularly for subjective non-economic damages in states that have not introduced reasonable limits on non-economic damages, and settlements that reflect the trend of jury awards are raising insurers' costs" thereby decreasing the access to quality health care.' 14 A recent survey, conducted by Harris Interactive, found that 76% of physicians questioned were "concerned" about their capability to provide quality health care due to malpractice cases."-' Moreover, a vast majority of the physicians surveyed said they order more medical tests for patients than medically 16 necessary.' Ninety-one percent of those surveyed stated that they believed other doctors order more tests than medically necessary. 117 In addition, a vast majority of those physicians surveyed have been referring patients to specialists more than is medically necessary, "recommend [ing] more invasive procedures... to confirm diagnoses," and finding that other physicians are over-prescribing medications." 8 The study reported that from 2001 to 2002 states without "[m]eaningful caps" had seen premium increases for certain specialists including "internal medicine, general surgery or obstetrics-gynecology[,]" ranging from 36 to 113%.119 On the other hand, the report does not explain why, in 2002, the state of Washington, which did not have a non-economic damage cap, had malpractice liability rates for ob-gyns which were lower than those offered in Montana, a state with a non-economic damage cap of $250, In addition, the report did not explain why Hawaii, a state with a non-economic damage cap of $350,000, 113 OFFICE OF THE AssisTANT SEC'Y FOR PLANNING & EVALUATION, supra note Id. at Id. at Id. 117 Id. 118 OFFICE OF THE ASSISTANT SEC'Y FOR PLANNING & EVALUATION, supra note Id. 120 Id. at Table 7. The lowest liability insurance rate in Washington was $30,900 and the highest rate was $51,900. The lowest liability insurance rate in Montana was $33,900 and the highest rate was $52,200. Id.

18 QUINNIPIAC HEALTH LAW [Vol. 8:109 had lower insurance rates for ob-gyns than Utah, a state with a $250,000 non-economic damage cap. 121 ii. The Impact of State Laws Limiting Malpractice Awards on the Geographic Distribution of Physicians 1 22 This report by the HHS concluded that states which established non-economic damages caps saw a larger increase of doctors from 1975 to 2000 than states without non-economic damages caps Specifically, on average, states with non-economic damages caps had twenty-four more physicians per 100,000 people than in states without non-economic damage caps. 12 Therefore, "[s] tates with caps on noneconomic damage awards or caps on total damage awards benefit from about 12 percent more physicians per capita than [s]tates without such laws." " 25 The report also cited to previous research which concluded that the more directly a tort reform law affects the actual malpractice damage award, the more of a direct impact there will be on malpractice premiums iii. Medical Malpractice: Implications of Rising Premiums on Access to Health Care' 2 ' The GAO studied nine states, five of which the AMA determined to be in a medical malpractice insurance crisis, and concluded that "[a] ctions taken by health care providers in response to rising malpractice premiums have contributed to localized health care access... however.., many of the reported provider actions were not substantial or did not affect access to health t28 care on a widespread basis.' Other studies, such as those HHS completed, 129 determined medical malpractice insurance rates in states without non-economic damages caps grew more quickly than those states with 121 Id. The liability insurance rate in Hawaii was $42,900. The lowest liability rate was $46,900 for Utah and the highest rate was $60,000. Id. 122 Hellinger & Encinosa, supra note Id. at Id. 125 Id. at Id. at U.S. GENERAL ACCOUNTING OFFICE, supra note Id. at OFFICE OF THE ASSISTANT SEC'Y FOR PLANNING & EVALUATION, supra note 111, at 25 tbl.7.

19 2004] THE MEDICAL MALPRACTICE CRISIS such caps. However, the GAO could not conclude these differences "were caused by tort reform laws or other factors that influence such differences,"" 1 3 such as "state laws regulating the premium rate-setting process[ ] and certain market forces, including the level of market competition among insurers and interest rates that affect insurers' investment returns. 131 The GAO study did find that certain parts of the U.S. had experienced a decrease in medical care An example used in the GAO study was an area of rural Mississippi, where pregnant women must drive an hour to deliver their babies because the closest hospital is located sixty-five miles away. 13 ' Additionally, the study found that some physicians did reduce their services in response to malpractice insurance increases, thereby affecting services such as emergency surgery and obstetrics IV The Current Medical Malpractice Dilemma and its Damaging Effects Although some in the medical and legal fields disagree as to the existence or extent of the medical malpractice crisis and what the cause of the crisis may be, it is clear that there have been increases in liability insurance for physicians, especially in the high risk fields of obstetrics. Proponents of limitations on non-economic damages cite to California as an example of how these reforms can work. They argue that since California has imposed these caps it has seen an increase of 167% in malpractice insurance premiums while the rest of the country has seen an increase of 505%.135 Opponents of caps cite the insurance reforms instituted in California starting in 1988 which regulate how high insurance premiums can be raised in the state as the real driving force behind California's slow increase of malpractice insurance premiums. 136 In determining the existence of a medical malpractice crisis, one might question whether the crisis is related to a large 130 U.S. GENERAL ACCOUNTING OFFICE, supra note 27, at Id. at Id. at Id. 134 Id. 135 Hellinger & Encinosa, supra note 3, at OFFICE OF THE ASSISTANT SEC'Y FOR PLANNING & EVALUATION, Supra note 111, at 35.

20 QUINNIPIAC HEALTH LAW [Vol. 8:109 amount of litigation. This, however, is not the case. Seventy percent of the claims in medical malpractice cases are either dismissed or end with no payment made on the claim. 137 In addition, the Harvard Medical Practice Survey found that "only 1.53% of patients injured by medical negligence filed malpractice claims. ' 138 The Harvard Survey suggested that legislatures should focus on the inaccessiblility of the malpractice system to injured parties. 139 Studies from the past fifteen years show that "the public policy problem is too much medical malpractice, not too much medical malpractice litigation.' 140 Assuming, arguendo, that a medical malpractice liability insurance crisis exists, the follow-up question should be whether the crisis was created by large jury awards. Initial research has indicated that compensation for victims of medical malpractice "does not increase the costs of medical malpractice [because] liability-based compensation shifts already existing costs from innocent victims (and their health insurers) to the party that caused the harm.' This research concludes that general malpractice compensation is already being built into the malpractice liability system and, therefore, jury awards do not cause the drastic increases in malpractice insurance premiums. Conversely, other research has found that jury awards have been growing faster than the rate of inflation over the past ten years. 142 In support of this assertion, insurance companies claim that huge losses caused by increasing jury awards have affected their ability to continue to cover medical malpractice insurance. St. Paul Companies, which insured approximately ten percent of medical providers on a national level, claimed "hundreds of millions" in losses, thereby justifying their withdrawal from the medical malpractice market in December To the contrary, research indicates that "the amount insurers have paid out, in- 137 Boulard, supra note Ken Marcus Gatter, The Continued Existence and Benefit of Medicine's Autonomous Law in Today's Health Care System, 24 DAYrON L. REv. 215, 249 (1999). 139 Tom Baker, Research on Medical Malpractice: Implications for Tort Reform in Connecticut 2 (January 2, 2003) (on file with the author). 140 Id. at Id. at Boulard, supra note 62 (providing that jury awards have grown by 7% per annum while the rate of inflation is only 4% per annum). 143 Id.

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