Articles Posted in Tort Reform

The Republican dominated House of Representatives has passed HR 5, a tort reform bill designed to make it more difficult for patients to pursue medical malpractice cases. 

The bill passed 223-181.   Ten Republicans voted against the legislation, and 7 Democrats crossed over to support the Republicans.  Four Republicans voted "present."

The legislation combines two AMA-supported bills: the “Medicare Decisions Accountability Act” (HR 452), and the “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act” (also HR 5). The legislation contains a wide range of AMA-supported medical liability reforms, including a $250,000 cap on noneconomic damages, punitive damage reforms, and more.

State Volunteer Mutual Insurance Company, the professional liability insurance company owned by doctors, has once again lowered the cost of insurance paid by Tennessee doctors.

Some highlights:

• The rate revision represents an overall rate decrease of 8.4% at limits of $1,000,000 / $3,000,000.  This results in an average per physican rate decrease of 7.5%.
• Rates for limits in excess of $2,000,000 have dropped 7.5%
• A year earlier, the rate decrease was 23.1%.  In 2009 rates dropped 2.5% on average and in 2008 the decrease was 4.2%
• a $20.1 million dollar dividend credit has been issued for policies renewing during the twelve months beginning May 15, 2011.  This has the effect of reducing rates over 5 percent.
• The dividend for 2010 was also $20 million.  Thus, in the last two years rates have dropped over 30% and $40 million in dividends have been paid.
• The total dividends returned to policy holders now totals $300 million in the past 35 years.
• Rates for allergists dropped the most, down 20.6% at the $1M level.
• Rates for OB / GYNs dropped 16.8% at the $1M level.
• Rates increased at the $1M level only for ER docs – up 1/8%.  The dividend will still result in a net decrease in premiums for ER doctors.

So how much do doctors pay for insurance, before getting the dividend and other credits that they earn for group discounts, risk management credits, etc.?  (All rates are claims made, 5th year, at $1M / $3M)

Andrew F. Popper, a law professor at American University, has written an article entitled "In Defense of Deterrence."  

Here is an abstract of the article:

The civil justice system deters misconduct. It generates far-reaching and positive market effects beyond victim compensation and recovery. Civil judgments, settlements, the potential for litigation — the tort system itself — has a beneficial effect on the behavior of those who are the subject of legal action as well as others in the same or similar lines of commerce. Over the last twenty years, legal scholars have debated whether the civil justice system generally, and tort recovery in particular, generates a deterrent effect. Those who have argued for tort reform (limiting the expanse and reach of accountability in the civil justice system) contend that the tort system has failed to live up to its promise of providing meaningful deterrence. Those who oppose tort reform and defend the civil justice system argue that tort cases have a powerful effect not only on the parties, but also on others involved in similar activity. This article takes the following position: those supporting tort reform cannot wish away deterrence. To claim that punishment has no effect on other market participants is to deny our collective experience. Deterrence is a real and present virtue of the tort system. The actual or potential imposition of civil tort liability changes the behavior of others. 

Texas passed an extensive anti-patient reform of its medical malpractice laws in 2003.

How’s it going for them?

Public Citizen says that "while litigation over malpractice in Texas has plummeted since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure."

AAJ received good news today regarding a case that was argued in the 14th Judicial District Court of Louisiana by the Center for Constitutional Litigation and Louisiana lawyer Oliver Schrumpf. CCL has worked on the case (Arrington v. Galen-Med, Inc.) for about four years, with support from AAJ and the Louisiana Association for Justice.

The court declared Louisiana’s $500,000 cap on all damages in medical malpractice cases unconstitutional as a violation of the state constitution’s equal protection and adequate remedy guarantees. The Louisiana cap is the most severe cap in the United States.

The court also found that there was no correlation between medical malpractice lawsuits and any crisis in insurance for doctors or the availability and affordability of health care.

Health care providers and their insurance companies have managed to persuade all too many Americans that holding providers responsible for malpractice is a bad thing.  They also claim that the number  medical malpractice claims and payments are increasing.

I simply cannot respond to the first contention.  The idea of holding people and corporations responsible for their actions does not seem to be a bad thing.  

I can respond to the second point and, unlike the health care industry I will use facts.

The high court in West Virginia has refused to vacate legislation that placed a cap on damages for non-economic loss in medical negligence cases. 

In McDonald v. City Hospital, Inc., No. 35543 (W.Va. 6/22/2011) the court ruled that the West Virginia Constitution did not limit the power of the Legislature to impose arbitrary limits on damages.

Here are the provisions of the West Virginia Constitution that were at issue in the case:

Here is a copy of the signed major tort reform legislation in Tennessee.   The legislation changes venue rules, places caps on damages (compensatory and punitive), and changes the substantive law in products and consumer protection cases.

More details later.

is an article by Larry Beinhart explaining how  and why Corporate America seeks to limit access to our courts by pushing so-called "tort reform" legislation.

Here

A sample: