A day does not go by without a story in the news of how doctors are leaving the practice of medicine because of skyrocketing medical malpractice premiums.  Besides omitting from the news story the statistics which show the opposite of this rhetoric, these news stories fail to mention the: increases in medical malpractice insurer profits; increases in reserves; and declining number and size of verdicts against doctors. The stories also fail to mention how doctors and insurers are responsible for the rising costs of litigating medical malpractice claims by engaging in delay tactics or the additional protection afforded to doctors in many jurisdictions (e.g., requiring a certificate of merit from a medical professional prior to the lawsuit proceeding). The public is being misled by an uninformed media, that is being lied to by a fraudulent industry, in an effort to make the public amenable to tort “reform” which is an attack on your seventh amendment right to a jury trial.

There is some abuse of the civil litigation system occurring.  But if any abuse is the benchmark for needing reform, the insurance industry needs a substantial overhaul, and it needs to be overhauled before the civil litigation system is further “reformed.”

Many states in response to the “medical malpractice crises” of the 1970’s & 1980’s instituted pre-filing certification requirements on medical malpractice claims.   These reviews cost several thousands of dollars and are not recoverable from a doctor found liable of malpractice. These reviews, along with the widespread use of medical “experts” make it economically unfeasible for a slightly injured patient to bring a claim.  What many people, and even many doctors, do not understand is that it takes at least $10,000 to prosecute even the smallest medical malpractice claim.  Not only does the plaintiff need to get a certificate of merit, but in most cases, at least one expert will be necessary for trial, and expert fees are usually significant.  In any sizeable case, there are likely to be several experts, with extensive medical records to review, depositions of all the experts, significant pre-trial preparation of experts and time at trial.  Actual out of pocket expenses for expert witness fees can easily reach or exceed $70K-$100K.  The insurance companies know that if they cap non-economic damages at $250K, many medical malpractice cases will not be economically feasible, and therefore not brought.  Malpractice insurers also know that if there is a cap on what a court can award, they have the upper hand in negotiating lower settlements (Note: where physician conduct is egregious, insurance companies will settle claims).

If you need further proof that it is not the civil litigation system, but rather the insurance industry that needs reform, look no further than the under-oath admissions of insurance companies that caps on damages will not lower medical malpractice premiums.  Insurance executives are forced to make these admissions because in those states where the legislatures have been suckered into accepting caps, the premiums in those states have not leveled off.

Americans for Insurance Reform has done an excellent job of demonstrating the deceit of insurers and the lackluster response of insurance regulators.