Malpractice in America: Is Anything Getting Better?

Anne L. Finger, MA

Disclosures

January 06, 2014

In This Article

What's Working in Each State?

Many malpractice attorneys and a number of researchers say that of the various med-mal tort reforms, the caps on noneconomic damages have had the greatest impact. (Anderson says that to be successful, a cap must be around $250,000.)

According to a report published by the Robert Wood Johnson Foundation, such caps have reduced average awards by 20%-30%, in states with caps, physicians' premiums have risen 6%-13% more slowly than in states without caps.[6]

But damage caps have been criticized by others because they impose a greater burden on poor and elderly persons. As Matray points out, "If you cap pain and suffering at $250,000, the only other thing is economic damages, and a person 35 years old has an expected income higher than the elderly."

In 9 states, malpractice caps have been found unconstitutional.[4] To circumvent such findings, states such as Texas put the issue on the ballot and amended their state constitution to grant the legal right to cap damages.

The "damage cap" issue is likely to arise in November 2014 in California, where the granddaddy of tort reform, the Medical Insurance Compensation Reform Act (MICRA), became law in 1975 during a medical professional liability crisis. If, as seems likely, proponents gain more than 500,000 signatures by March 24, 2014, the November ballot will include an initiative that increases the $250,000 cap on pain and suffering damages to more than $1 million, adjusted for inflation.

It would also require drug and alcohol testing of doctors and the reporting of a positive test to the California Medical Board.[7] If the initiative passes, could there be implications beyond California? "It could be a concern," says Atchinson, whose organization's Website states, "If MICRA's cap is undone now, no state caps will be safe in the future."[8]

Other tort reforms have been proposed or implemented; however, research hasn't backed their impact as solidly as it has damage caps, or if they are already in place, data are insufficient to determine their value to date.

Health courts. "Medical courts have some promise," says Anderson. "Now the legal standard of care is whatever the judge and jury decide that day. With medical courts, there's more predictability in the law; if you have established precedents, at least you know where you stand."

Certificates of merit. These require that a lawsuit be accompanied by certification that a claim is valid. According to PIAA, insurers in Michigan particularly report positive results from this approach. Thirty-three states have a pretrial screen or certificate of merit.[5]

Caps on attorney contingency fees. Anderson is unequivocal: "These combat the plaintiff bar's parasitic form of venture capitalism. Although personal injury lawyers win only a small percentage of their cases, the high awards allow them to maintain a very comfortable lifestyle. We wouldn't accept an 80% error rate in any other profession."

In contrast, Lincoln of Public Citizen feels that caps on attorney contingency fees make it hard for the patient to find an attorney. "What business is it of the people putting forth these proposals how much money attorneys make?" he asks. Sixteen states have laws regarding caps on attorney contingency fees.

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