Making Votes Count on Medical Malpractice Issues

The callous politics of profit over people are in play every fourth November, but on November 2nd 2004, voters in four states — Florida, Oregon, Nevada and Wyoming — will be voting on various measures of tort reform that would essentially limit the rights of those grossly injured by medical malpractice errors in those states. According to the Institute of Medicine (of the National Academies), 98,000 American die each year as a result of medical malpractice; millions more are injured, many severely.

Medical societies in America have been complicit in this massive loss of life for far too long. They have been very negligent in weeding out the bad doctors in their ranks — about 5 percent — who account for more than 50% of all medical malpractice claims filed, according the National Practitioner Database. But the doctors’ lobbies that have failed us through collegial protection are now calling on citizens to self-sacrifice by voluntarily giving up their constitutionally guaranteed full day in court.

It should be noted, however, that doctors are not the true villains in this scenario. They certainly need to clean up their profession, but the real disinformation comes down like gospel from the medical malpractice insurers that routinely gouge doctors and, indirectly, patients. By using doctors as difficult-to-impugn mouthpieces for their campaign to eviscerate America’s civil justice system, these insurance companies gain credibility with voters and legislators that the overly compensated insurance bosses lack.

The unregulated insurance industry freely mismanages their finances with the knowledge that, when money is tight, they can pursue a two-fold plan. The first part entails simply gouging doctors and patients by raising insurance premiums. The second is a function of the outrage such hikes elicit from the medical community. This influences the national and state legislators who have their fingers to the wind and their eyes on the big money that insurers spread around liberally (on both sides of the aisle) to purchase allegiance in the lawmaking process. Without disclosing their financial mismanagement, the insurance industry cries foul on the specter of a “judicial system run amok.” The truth is that new medical malpractice claims filed have actually decreased, according to data compiled by the National Association of Insurance Commissioners. And jury decisions have remained just about constant with inflation over the years.

The large proportion of good doctors — who spend their time and resources treating patients — simply accept the insurance industryís rhetoric as absolute veracity. So the mendacious rhetoric of the insurers is then repeated through the credible voices of beleaguered doctors. This all makes for compelling political theater: doctors and insurers marching in lockstep; herds of white lab coats flooding State Capitols all over the country.

This chain of events has been elucidated by former Federal Insurance Administrator, Robert J. Hunter, in his report, “Medical Malpractice Insurance: Stable Losses/Unstable Rates 2004.” Hunter states that, “the current jump in prices doctors pay is a result of a combination of two insurance company practices: (1) the insurersí aggressive under-pricing to gain market share when interest rates were high, coupled with (2) the insurersí classification plan that charges some high-risk doctors for all of the cost of the high-risk cases referred to them by all other doctors. What is crystal clear is that what did not cause this crisis was an increase in losses. There simply is no evidence of that.”

Further, Hunter says that, “There is only one way to solve this problem: reforming the insurance industry. State lawmakers must strengthen state insurance laws in order to end the boom and bust swing from illegal overpricing, such as the rates doctors are being asked to pay today, to illegal and inadequate underpricing, which will be seen when the market softens later in the cycle. Fortunately, the hard market price jump is behind us and we are now entering the softer market so legislators have a decade or so to grapple with how best to do this before the next hard market hits the nation.”

So when voters in Florida, Oregon, Nevada and Wyoming vote this fall, they should take great care to preserve their access to the civil justice system. They should vote “no” on any ballot initiative by remote legislators that would arbitrarily limit their judicial rights should they ever have the misfortune of being adversely affected by medical malpractice. Every injury is different. How can the voters, in good conscience, limit every person to the same damage award for a lifetime in a wheelchair, the loss of a loved one, a missing limb, or worse?

For more information, please visit: www.insurance-reform.org,www.citizen.org, or www.centerjd.org