Re: GEN: Well, I guess the crisis will continue.
From: Charlie Chambers (cchamber@gorge.net)
Fri May 13 20:18:54 2005
Boy, there's a big surprise. A study commissioned by the Illinois State
Bar done by a law professor shows that tort reform isn't necessary.
That's like asking legislatures to invoke meaningful campaign finance
reform.
Someone going to try to explain that the recent MA case that resulted
in a 24 million dollar finding for the plaintiff wouldn't affect
premiums. I don't believe it's the only problem, but I can't see how it
doesn't contribute.
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Charlie Chambers
Hood River, OR
cchamber@alumni.rice.edu
"No matter where you go...
there you are."
Dr. Buckaroo Banzai
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On May 13, 2005, at 5:28 PM, DoctorJoe@aol.com wrote:
>
> LITIGATION NOT CAUSING MED-MAL CRISIS, STUDY SAYS
> Illinois Review Shows Liability Caps Wouldn't Decrease Premiums
> BY MOLLY McDONOUGH
> A study of Illinois medical malpractice cases released Tuesday
> rejects a prevailing view that out-of-control jury verdicts and case
> filings are causing insurance rates to skyrocket and doctors to flee
> to less litigious states.
> Duke University law professor Neil Vidmar found that while doctors'
> liability premiums are clearly on the rise, other causes besides the
> tort system are to blame. The Illinois State Bar Association
> commissioned Vidmar to conduct the study. He is the author of Medical
> Malpractice and the American Jury: Confronting the Myths about Jury
> Incompetence, Deep Pockets and Outrageous Damage Awards.
> Vidmar's theory is that rate spikes are more likely tied to the
> insurance industry's business cycle, an argument trial lawyers have
> made for years.
> "My own view is that doctors have sort of become victims in this
> whole thing," Vidmar says. Doctors, he adds, have been led to believe
> that the tort system is the cause of higher rates when they should be
> looking at the practices of their insurers.
> "They've got a misdiagnosis here," says Vidmar, who has offered to
> make his research data available to anyone who asks to see it.
> Illinois State Medical Society President Craig A. Backs issued a
> statement that discounted the study as late in the game by an author
> with a "history of collaboration with trial attorneys." Illinois
> lawmakers are in the midst of considering legislation that would,
> among other things, cap noneconomic damages for pain and suffering
> claims.
> "The experiences of other states, such as Texas, prove that
> meaningful legal reforms-including a cap on noneconomic damages-lower
> physicians' liability premiums, bring liability insurers back into the
> market, and increase access to medical care without blocking the
> courthouse door," Backs says.
> In his 85-page study, "Medical Malpractice and the Tort System in
> Illinois," Vidmar found a steady increase in the absolute number of
> patient care physicians in Illinois and an "upward or steady trend"
> for specialties such as obstetrics and gynecology and neurological
> surgeons. He also found medical liability caps would do little to
> reduce premiums for doctors.
> The findings run contrary to claims by tort reform advocates,
> including the American Medical Association. Illinois is one of the 20
> states (up from 12 in 2002) the AMA has identified as in the midst of
> a medical liability crisis. The AMA says that doctors, especially
> those in high-risk specialties, face liability premiums of more than
> $200,000 a year, a price tag that is forcing many to limit services,
> retire or move.
> The Government Accountability Office in a 2003 report also identified
> malpractice losses as a factor in rising medical liability premiums.
> But the GAO and others have concluded this rate increase is caused by
> other factors as well, including insurers' decreased return on
> investment income, a smaller pool of insurers offering malpractice
> insurance, and industrywide insurance rate increases. Yet most of the
> debate over medical liability rates is focused on malpractice lawsuits
> and excludes these other "relevant issues related to insurance and
> standards of care," according to the National Conference of State
> Legislatures.
> Indeed, Congress is weighing medical malpractice legislation, HR 534
> and S. 354, that would cap noneconomic damages at $250,000, set a
> three-year statute of limitations to initiate lawsuits, restrict
> punitive damages and limit attorney fees.
> All states already have statutes of limitations on the filing of
> medical malpractice suits, most setting the limit at two years. Many
> states also have laws limiting damage awards and attorney fees. So far
> this year, 39 states have introduced legislation designed to address
> rising medical liability premiums for doctors, according to the
> National Conference of State Legislatures, which argues federal
> legislation would pre-empt these state initiatives.
> In his Illinois study, Vidmar looked primarily at the state's most
> populous counties, Cook and DuPage, which are part of the Chicago
> area. He also examined cases in the Southern Illinois counties of
> Madison and St. Clair, an area the American Tort Reform Association
> dubbed a "judicial hellhole." President Bush visited the area in
> January to draw support for initiatives to rein in lawsuits.
> But according to Vidmar's study of jury verdicts between 1992 and
> 2005, medical malpractice cases aren't the problem. Of 11 jury
> verdicts favoring plaintiffs in Madison and St. Clair counties, he
> found only two that exceeded $1 million.
> In Cook and DuPage, the study showed a decrease in medical
> malpractice trials between 1996 and 2001 and a slight increase in win
> rates for plaintiffs. From 2001 to 2004, he found neither an increase
> in jury trials nor an increase in win rates.
> Vidmar looked most comprehensively at verdicts in Cook and DuPage for
> the year 2001. Of 99 jury verdicts that year, he found 30 for
> plaintiffs. Nineteen of those were for more than $1 million. He
> cautioned that the verdicts do not necessarily reflect the actual
> payouts, however.
> One result that surprised Vidmar was that settlement mechanisms, such
> as high-low agreements in which plaintiff and defendant agree to the
> upper and lower boundaries of any award before a jury verdict comes
> in, play an important role in keeping actual judgments low in the
> post-verdict phase of a lawsuit.
> Other factors reducing the actual payouts after trial include judges
> reducing verdicts and parties settling to avoid appeal.
> For example, the jury verdict in a case involving a birth injury that
> led to cerebral palsy resulted in a $30 million verdict against the
> main physician defendant. However, he had already agreed during jury
> deliberations to settle for his policy limit, which was $1 million.
> One hospital settled before trial for $100,000, and jurors found in
> favor of the remaining defendants. Bryant v. LaGrange Memorial
> Hospital, No. 96L-11679 (July 2001).
> Vidmar's study wasn't as comprehensive as he would have liked. He
> maintains that a request to the Division of Insurance at the Illinois
> Department of Financial and Professional Regulation for its records on
> closed claim files went unanswered.
> A study of closed medical malpractice claims in Florida revealed that
> 26 percent of those claims never make it to lawsuit and are either
> resolved in arbitration or in a payout by the insurer. With Florida's
> insurance data, Vidmar also was able to find that over a 13-year
> period, there were only 34 cases that resulted in payouts of more than
> $5 million. Only two of those cases were the result of jury trials.
> Susan Hofer, a spokeswoman for the Illinois Department of Financial
> and Professional Regulation, says the insurance division releases
> information on closed claims every five years. But to protect the
> privacy of patients, its public reports only reflect aggregate data.
> The last report was issued in 2001. There currently is no plan to
> change the rules to release more detailed information, other than to
> possibly provide additional information to insurance carriers to help
> them set rates, Hofer says.
> Vidmar and the Illinois State Bar Association, which forwarded
> Vidmar's report to Illinois lawmakers, say that more data ought to be
> made public.
>
> "Doctors and patients and interest groups on both sides of the
> controversy, indeed the citizens who pay taxes to have these important
> data collected, should have a right to know," Vidmar's report
> concludes. "The controversy regarding health care should be resolved
> with data rather than by anecdote and questionable statistics."
>
>
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