Malpractice tort reform is decoy for real gougers

Malpractice tort reform is decoy for real gougers

December 6th, 2013 in Opinion Times

Tort reform in Tennessee was supposed to lower exorbitant medical malpractice insurance rates for doctors and hospitals - and therefore runaway medical costs.

The 2007 legislation did lower insurance costs for health providers, but has anyone noticed lower health insurance premiums or hospital bills?

Apparently, all that we ordinary mortals got out of medical tort reform wasn't help; it was a roadblock to hold negligent health care providers accountable.

"What people in Tennessee don't understand is there has been an effort to take away their rights to access the courthouse," said Bryan Smith, president of the Tennessee Association for Justice, a plaintiffs' lawyers group.

Research by Times Free Press reporter Todd South this week found that not only do Tennessee malpractice cases have legislature-enacted caps on damages, but people trying to sue doctors and hospitals face a more stringent and expensive certifying process in order to bring a lawsuit. That process essentially means the plaintiff and his or her attorneys must largely prove most of their case before even filing in court, and they must notify the defendant 60 days before filing. Even minor filing errors can get the case thrown out.

No other lawsuits face such high hurdles, and the result is that most lawyers find these cases too complicated, too expensive and too risky to take on. In 2007, the year before tort reform, Tennessee lawyers filed 584 medical malpractice suits. Last year, they filed 374, a decrease of 36 percent.

In contrast, a recent Tennessee Medical Association report notes that insurance premium rates for doctors have dropped since 2009. In the higher-risk specialties such as obstetrics, general surgery and neurosurgery, that has meant a savings of between $11,500 and $18,856 annually. And an article in the October issue of Tennessee Bar Journal notes that 80 percent of all medical malpractice suits are won by the health care provider.

Physician, hospital and insurance lobbies are a powerful force: Nearly half of the nation's 50 states have passed some type of cap on "pain and suffering" or "loss of enjoyment" damages in medical malpractice lawsuits, with the basic caps ranging from $250,000 to $750,000, according to the American Medical Association. So-called economic damages such as "loss of income, future earnings and past and ongoing medical bills" already were limited simply by the circumstances of individual lives.

But the health and insurance industries' push doesn't stop with caps. In September, Georgia lawmakers heard committee testimony on the Patient Injury Act, a Peach State Senate bill that would move medical malpractice claims out of the courts entirely and into an administrative system overseen by a "patient compensation board" within the Department of Community Health.

The bill is being pushed by a health care industry group called Patients for a Fair Compensation, which claims more patients will qualify for compensation under the such a system, but (here we go again) "health-care costs will ultimately be lowered."

The legislation, also called Senate Bill 141, has quite a few opponents, including the State Bar of Georgia. Charles L. Ruffin, president of the state bar, said that everyone is entitled to a trial by jury and that there needs to be "an impartial judge overseeing an impartial jury making these decisions."

Former Georgia Attorney General Mike Bowers also opposes the bill, saying he believes the it won't withstand a Constitutional challenge. Even the Medical Association of Georgia, a physicians group, is unsure of this fix; and Georgia Watch, a statewide consumer advocacy group, calls it "a misguided attempt to 'fix' a problem that does not actually exist, namely the supposedly high cost of medical malpractice claims."

The Congressional Budget Office in 2004 found that malpractice accounted for less than 2 percent of health care spending. Five years later the CBO revisited its study, factoring in negligence and doctor-ordered extra tests to avoid liability. As in 2004, analysts found that tort reform would only save 0.5 percent of all health care costs.