Board of Contributors: Damage caps fail to make health care safer

CHEST, the peer-reviewed official journal of the American College of Chest Physicians, published an article under its medical ethics category titled "Five Myths of Medical Malpractice."

The piece explains to its physician audience that there are "five myths of medical malpractice that have wide currency in medical circles." The ACCP's membership are doctors who practice cardiology, pulmonary medicine and critical care.

The first myth is that malpractice crises are caused by spikes in medical malpractice litigation — sudden rises in payouts and claim frequency. Then there is the myth that the tort system delivers "jackpot justice," or excessive payouts.

Next is the myth that physicians are one malpractice verdict away from bankruptcy. Furthermore, physicians move to states that adopt damage caps.

Finally, the article attempts to dispel the myth that tort reform will lower health-care spending dramatically. This is a courageous piece of peer-reviewed literature, written for a physician audience, as it dispels myths that many inside the medical community — as well as many in the general public — have clung to for years.

But the facts prove otherwise, and it is time we all consider the facts.

Payouts have fallen dramatically since 1992 in states with and without damage caps. Furthermore, there have been no litigation spikes.

Patients who are true victims of malpractice recover money far more often than patients treated non-negligently. And the overwhelming number of negligently injured patients never initiate claims.

Let's look at the statistics that backing these claims. The most severely injured patients are under-compensated — as many as 85 percent of initiated claims are closed without payment. Only two percent of claims are actually tried and 75 percent of tried claims result in favorable verdicts for the health-care provider. And out of pocket payments by physicians are so rare they are virtually non-existent.

At best, damage caps have been responsible for marginal, less than 3.5 percent, increases in high risk specialties practicing in rural counties, no increase in urban centers, and the results of data analyses suggesting rural increases are mixed and conflicting. The data fails to support any meaningful drop in health-care spending, 0.4 percent to 1.6 percent, even in the face of significant reductions — 30 percent — in malpractice premiums.

And some data suggested health care spending increased in states like Texas after damage caps and other malpractice tort reforms were adopted.

Most importantly, the authors address the issue of patient safety. Isn't that what it is all about?

The authors rightly conclude that "damage caps do little to improve the malpractice system." Although damage caps can "dramatically reduce claims frequency, payouts per claim, and insurance premiums," the data prove that tort reform does not do make health-care safer, reduce health-care spending, compensate those who are negligently injured or make the liability system work better.

The article states that the "best reforms are patient safety initiatives that reduce the frequency and severity of medical mistakes. Ideally, the liability system would encourage providers to adopt patient-protecting innovations."

But, as the authors aptly state, the tort system is hamstrung — due to tort reform — in its ability to improve things for patients. Damage caps and other reforms that protect negligent doctors and hospitals, insulate providers from many of the costs of medical errors.

If we want a safer health-care system, and a safer world, we need to make the tort system more efficient, with sharper teeth, not less.

Damage caps fail to make our system safer. To the contrary, the more our judicial system tolerates negligent care, the less our health-care system demands safety and vigilance. Meanwhile, where we have tort reform, we gain next to nothing.

Stuart Ratzan, shareholder of Ratzan Law Group, has successfully tried and resolved many of Florida's most significant medical malpractice, product liability, catastrophic injury and wrongful death cases for more than 20 years.

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