Adding Some Balance To The CAP’s “Balance”

By Dan Pero | Category: Medical Liability, Tort Reform, Trial Lawyers

This item on medical tort reform is a prime example of the “balanced” approach taken by the Center for American Progress (CAP), which carefully examines both sides of an issue and invariably agrees in every particular with the trial bar.

The critical issue in medical malpractice today is whether or not to put caps on non-economic damages for “pain and suffering.” This is not academic to trial lawyers. It is a major pocket book issue for them.

For an illustration, consider what happened in Texas when that state passed medical malpractice reform in 2003. Three years later, when reforms had begun to take root, the ABA Journal ran an unintentionally revealing article about how “Texas plaintiffs lawyers [were] leaving in droves from nursing home and medical malpractice litigation in the wake of tort reform.” Many law medical malpractice firms, the article complained, were “breaking up or dropping whole practice groups.” Some lawyers had “simply retired or left the profession.

”That’s one of the effects caps can have, and it’s worth keeping in mind as lawyers and those who receive their campaign contributions blather on about how much they care about the patients. Because the other effect of caps can be vastly improved patient care, seen in Texas by the raw numbers of doctors who were once fleeing the state are now lining up to come set up practice there, creating a huge certification backlog.

So let’s take one of the “balanced” conclusions from the CAP and do a little deconstruction work: “Though medical liability premiums are lower in states with caps, malpractice insurance premiums have increased even in these states.”

Of course they have, along with prices (inflation) and incomes. But they’ve risen much less. California, the pioneer in medical malpractice reform, put caps in place in 1976. From then until 2005, liability premiums rose 322% in that state, less than one third the rates in all the other states combined, where premiums rose 1040%.

The CAP concludes that there is “no nationwide crisis.” In a sense they are right. There’s no crisis in Texas or California, where caps are in place and holding, despite repeated legal attacks by trial lawyers. In those states that have not passed caps, however, or where the trial bar has been successful in convincing activist judges to overturn them, the situation can be dire indeed, as doctors flee the state or retire early.

Pennsylvania has some of the best medical colleges in the world, but one of the worst liability climates in the country. The result is that some 92 percent of all the physicians who train in Pennsylvania flee the state upon graduation, . There is today not one single neurosurgeon available to treat the half million residents of Chester Country. Last year, Katie Couric of CBS news reported on the 14th maternity ward to close in Philadelphia in the last decade.

The CAP’s item “The Jury’s Still Out: A Critical Look at Malpractice Reform,” concludes that discussion of medical malpractice reform is only a distraction from the more important issue of patient safety. Perhaps they could tell us in a “balanced” way how you can protect patient safety if there are no doctors or hospitals or maternity wards to treat the patients in the first place.