Medical malpractice reform could exact huge costs – Reposted from

Tort reform • We can’t afford to sacrifice the right to a trial by jury because of misguided political pressure.

By Christopher K. Yarbro | Posted: Thursday, February 24, 2011 12:05 am


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Politicians, pundits and physicians are casting stones against individuals who seek help from the court system for substandard medical treatment. Campaigns for tort reform are re-emerging on the heels of the recent midterm elections and the controversial federal health care law. Proponents again are championing limitations on medical malpractice cases to protect against increasing health care costs and a failing health care system.

Medical malpractice is a legal cause of action that affords individuals compensation to offset the harm from substandard medical care. The harms typically include serious injuries that forever alter a victim’s life or cause death. Medical malpractice cases seek to offset these harms through compensating the victim and provide an incentive for medical providers to meet accepted standards of science.

At first glance, limiting this compensation in an attempt to save a failing health care system may seem sound, but it comes with unbearable costs. The foremost cost is the stripping away of the individual’s constitutional right to a trial by jury.

Every Missourian has a constitutionally protected right to have a jury of their peers determine the merits of a medical malpractice case. This includes the ability to have the jury determine the extent of the harms caused by substandard medical care and the amount necessary to fully compensate for the harms. This right is guaranteed by Missouri’s Constitution of 1820. The drafters believed the right to a trial by jury was of such importance, they guaranteed the right “inviolate,” or free from change. This restriction was designed to place the right to a trial by jury beyond the reach of hostile legislation.

The right to a trial by jury also was of the highest importance to the United States’ founding fathers. In a recent Missouri Supreme Court case, Judge Michael Wolff called attention to the remarks by founding father Alexander Hamilton. In describing the drafters of the U.S. Constitution in Federalist Papers, No. 83, Hamilton stated “if they agree in nothing else, concur at least in the value they set upon the trial by jury.” In evaluating the necessity of the right to a jury trial, Hamilton noted that some drafters regarded the right as “a valuable safeguard to liberty,” while others considered it “as the very palladium of free government.”

This renewed call for tort reform casts in jeopardy the very safeguards of liberty and free government our founding fathers sought. It is too great of a cost to exchange our constitutional freedoms for the popular rhetoric of tort reform and the economic gain of those championing the cause.

But, even if we were willing to sacrifice constitutional freedoms, medical malpractice reform is not the answer. There are not too many “frivolous” malpractice lawsuits. A Harvard School of Public Health study that analyzed more than 1,400 closed malpractice claims concluded that more than 97 percent of filed medical malpractice claims were meritorious. And of those, 80 percent involved death or serious injury.

Malpractice claims do not drive up health care costs. According to the National Association of Insurance Commissioners most recent analysis in 2007, the total spent defending claims and compensating victims of substandard care was $7.1 billion, just 0.3 percent of total $2.2 trillion health care costs. In 2008, that number fell to $6.2 billion.

Doctors are not fleeing the practice of medicine. According to American Medical Association’s statistics, the number of physicians has grown twice as fast as the U.S. population since 1960. Advocates of medical malpractice reform often argue that Illinois is the leading example of doctors fleeing because of an unfavorable litigation climate. However, the number of licensed physicians engaged in “patient care” in Illinois never has declined. Instead, Illinois has more doctors per capita than California, Ohio and Texas, states that have limited malpractice compensation.

Malpractice claims do not drive up doctors’ insurance premiums. Researcher at the National Bureau of Economic Research reported that “increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums.” Similarly, Americans for Insurance Reform conducted an analysis of the relationship between insurance payouts and premiums charged and found that, “[n]ot only was there no ‘explosion’ in lawsuits, jury awards or any tort system costs to justify the astronomical premium increases that doctors have been charged in recent years. These rate increases were rather driven by the economic cycle of the insurance industry, driven by declining interest rates and investment.”

Additionally, an American Association of Justice analysis in 2008 of financial statements filed by the 10 largest malpractice insurers found that the average profits of these companies are higher than 99 percent of all Fortune 500 companies.

Medical malpractice reform will not lower insurance rates. Medical malpractice reforms often are passed under the guise they will lower physicians’ liability premiums. In 2009, the average liability premium in states without compensation limits were lower than the average premium in states with such limitations. In Texas, a state with very restrictive limits, the opposite has occurred. Following the Texas’s enactment of limits, GE Medical Protective, one of the nation’s largest medical malpractice insurers, announced a 19 percent increase in premiums.

Finally, the true solution lies not in tort reform, but rather in insurance industry reform. In March 2010, an AMA report “Competition in Health Insurance: A Comprehensive Study of U.S. Markets,” stated that “[a]n absence of competition in health insurance markets is clearly not in the best economic interest of patients. The [American Medical Association] has urged the Department of Justice and state agencies to more aggressively enforce antitrust laws that prohibit harmful [insurance] mergers.”

The campaign for medical malpractice reform uses simplistic rhetoric not supported by facts. We cannot afford to sacrifice the right to a trial by jury to accommodate misguided political pressure.

Christopher K. Yarbro is a lawyer in private practice in Popular Bluff, Mo.