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Proponents of civil justice restrictions have made limiting the amount a person can receive from a negligent health care provider when they are a victim of medical negligence a top priority.

A one-size-fits-all approach is unfair to victims – an informed jury is the only fair way to truly decide what a victim’s pain and suffering is worth.

Caps are an arbitrary, one-size-fits-all approach that ignores the patient’s suffering and necessary future treatment. An individual left in excruciating pain for life would receive no more than a person with lesser injuries.

Proponents of the legislation have one goal – to pay back insurance industry friends who bankroll their campaigns. Proposals do not require insurance companies to pass on any savings to doctors in the form of lower insurance premiums.

Here are the facts:

The Number of Doctors is Increasing

According to the American Medical Association’s own statistics, the number of physicians in the United States has increased by 40 percent since 1990. In fact, the number of emergency room doctors has nearly doubled; the number of neurosurgeons has increased by more than 20 percent; and the number of OB-GYNs has increased by nearly 25 percent. Meanwhile the medical malpractice filings they are allegedly running away from have fallen in number since 1998.

  1. The number of emergency physicians in the United States has increased. The number of emergency room doctors has nearly doubled – from 14,243 in 1990 to 27,864 in 2004.
  2. The number of neurosurgeons in the United States has increased. The number of neurosurgeons has increased by more than 20 percent – from 4,358 in 1990 to 5,288 in 2004.
  3. The number of OB/GYNs has increased in the United States. The number of OB-GYNs has increased by nearly 25 percent – from 33,697 in 1990 to 42,059 in 2004.

There is No “Explosion” in Pay-Outs

The recently touted “explosion” in medical malpractice payouts is a myth. The average verdict size is relatively low and has remained stable since the mid-1980s. Americans use the civil justice system as a last resort, with only 2 percent of potential plaintiffs going to court after all other efforts have failed.

Skyrocketing Insurance Premiums Were Caused by Insurance Industry Price-Gouging

Expensive insurance premiums are the result of industry price-gouging, not pay-outs in medical malpractice cases. A 2005 study conducted by former Missouri Insurance Commissioner Jay Angoff found that insurance companies have been price-gouging doctors by drastically raising their insurance premiums, even though claims payments have been flat, or in some cases decreasing. According to the annual statements of the 15 largest insurance companies, the amount malpractice insurers collected in premiums increased by 120.2 percent between 2000 and 2004, while their claims payouts rose by only 5.7 percent. Thus, they increased their premiums by 21 times the increase in their claims payments.

According to Americans for Insurance Reform: “Not only has there been no ‘explosion’ in medical malpractice payouts at any time during the past 30 years, but payments (in constant dollars) have been extremely stable and virtually flat since the mid-1980s.

Payouts in medical malpractice cases have dropped over the last four years. After adjusting for inflation, the number of payments over $1 million has dropped by percent since 1991. According to Public Citizen, malpractice payouts have remained flat for more than a decade.

Even insurance industry officials and their allies admit that medical malpractice “reform” will not lead to lower insurance rates.

  1. American Insurance Association: “Insurers never promised that tort reform would achieve specific premium savings.
  2. Both the President of the Physician Insurers Association of America and the General Counsel to the American Tort Reform Association have stated that premiums increased, in part, to make up for lost investments.
  3. President of First Professional Insurance Company: “No responsible insurer can cut its rates after a [medical malpractice tort ‘reform’] bill passes.”
  4. GE Medical Protective told the Texas Insurance Commissioner that caps had a negligible impact on rates.

Medical Negligence Cases are Not Threatening Access to Health Care

According to the Congressional Budget Office, malpractice costs amount to less than 2 percent of overall health care spending. Even a 25-30 percent reduction in malpractice costs wouldn’t lower health insurance premiums by half a percent.

Malpractice cases aren’t threatening health care…medical negligence is. As many as 98,000 patients die each year in hospitals alone as a result of medical negligence. As the Institute of Medicine noted, “preventable medical errors in hospitals exceed attributable deaths to such feared threats as motor-vehicle wrecks, breast cancer, and AIDS.” They also noted that this medical negligence costs the economy between $17 billion and $29 billion per year.

So-Called “Defensive Medicine” is a Myth

The methodology used to calculate the cost of “defensive medicine” has been debunked by the CBO and the GAO. Supporters of medical malpractice “reform” often refer to the cost of so-called “defensive medicine” – the additional procedures that doctors supposedly order solely because of litigation concerns – to bolster their case for limiting access to the civil justice system. In 1999 the GAO wrote, “[this study] cannot be extrapolated to the larger practice of medicine. Given the limited evidence, reliable cost savings estimates cannot be developed.

Caps on Medical Malpractice Don’t Work

Medical malpractice premiums in a number of states actually increased even after medical malpractice caps were enacted.

  1. A month after passing malpractice caps, South Carolina’s two largest insurers increased rates by as much as 22 percent, after increasing their rates by 27 percent the year before.
  2. After Texas passed rate caps in 2003, the Joint Underwriting Association requested a 35 percent jump in premiums for physicians and 68 percent increase for hospitals. In addition, GE Medical Protective, the nation’s largest medical malpractice insurer, announced a 19 percent increase in doctors’ premiums. When the request was denied, they announced intentions to use a legal loophole, avoiding state regulation, and increased premiums 10 percent – without approval.

Doctors are professionals who should be ashamed of the outright falsehoods that they widely publicize about their negligence. The psychiatrists and psychologists would have an interesting ressearch study to fathom the reasons why these wealthy professionals cannot even follow their own codes of professional behavior. My guess is that doctors cannot do what we ask children to do: "tell the truth and admit it when you are wrong". Fear of being wrong may be so great among doctors that they cannot live with themselves.

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