COMMENTARY

How One State Tamed the Med-Mal Crisis; More

Wayne J. Guglielmo, MA

Disclosures

August 20, 2015

The State With the Fewest Malpractice Claims: Why?

Last year, doctors in Wisconsin were liable for fewer medical malpractice claims per capita than physicians in any other state, according to an analysis by the Milwaukee Journal Sentinel.[1]

The analysis was based on records filed with the federal National Practitioner Data Bank, an electronic repository of medical malpractice payments and related actions. In examining the records, the news outlet found that in 2014, only 6 of every 1 million Wisconsin residents collected a check related to a medical malpractice claim, resulting in just 37 total payouts. Nationally, the rate is 27 payouts per 1 million population.

This is the third time in the past 5 years that Wisconsin's payment rate ranked last among the states. What's more, since 1992 it has ranked 47th or lower 20 times.

What's driving the drop in payouts?

Experts point to several factors, including the state's $750,000 cap on noneconomic damages; tort reform measures, such as the use of expert testimony to establish the standard of care; and the state's $1.2 billion Injured Patients and Families Compensation Fund, which pays all claims in excess of $1 million in total damages. (Total damages include both economic and noneconomic awards.) According to one Wisconsin trial attorney, the fund removes any incentive for doctors, hospitals, and their insurance companies to negotiate a claim, because their losses are in effect capped by the fund.

For all its success in keeping its claims payouts at historic lows, however, Wisconsin is an extreme example of a national trend that—through a combination of damage caps and other measures, such as a compensation fund—is showing a reduction in the number of successful med-mal claims, points out Bernard Black of Northwestern University School of Law, who studies the issue.

The national figures bear him out. In 1992, 56 of every 1 million people in the United States collected on a medical malpractice claim. By 2004, that number had dropped to 49 of every 1 million, and as mentioned earlier, last year it was 27 of every 1 million. (In Wisconsin, the dip over this same period was even more dramatic, falling from 35 per 1 million residents to just the 6 per 1 million cited above.)

This trend, although welcome news to healthcare providers and their insurers, may prove less than fortunate to many injured patients, say trial lawyers.

"Doctors may be getting away with malpractice that they'll never be held accountable for because the cases aren't strong enough or the damages not significant enough to get a good lawyer," says Baltimore malpractice attorney Dov Apfel. "There are legitimate meritorious medical malpractice cases in the $500,000 range or $1 million range that aren't being brought."

The Assumption That Patients Waive Their Medical Privacy Rights

Tort reform advocates in Florida are breathing easier after a state appeals court last month upheld the constitutionality of a controversial change in the state's medical malpractice laws, reports a story that appeared on Health News Florida[2] and other news outlets.

The change dates back to 2013, when the state's Republican-controlled legislature passed a law altering "ex parte communications" in med-mal cases—that is, communications that take place without all parties to the dispute being present, including attorneys and other doctors who treated the patient. Under the new law, patients are required to sign a form authorizing such communications before filing a medical malpractice claim.

Shortly after the law's passage, however, a prospective plaintiff raised a constitutional challenge to it, arguing among other things that the law violated a right to privacy in the Florida Constitution. As initially drafted, the challenge argued that the law requires disclosures of private health and medical information "without a compelling need for that information, in an overly broad fashion without adequate safeguards against unnecessary disclosure, and without notice or opportunity to limit those disclosures."

But the three-judge appeals panel disagreed. In its ruling, the court said that by the very act of filing a med-mal claim where their medical status is at issue, plaintiffs waive their medical privacy rights, something "well established in Florida and across the country."

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