Insurer must pay $13.6M after hospital death

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For most average folks - the kind of people I represent every day - the issue of capping damages in medical malpractice cases is difficult to understand.

Many people don't realize the catastrophic impact caps could have on their legal rights. The medical lobby, insurance industry and right-wing politicians have been very adept at using the issue's complexity to their advantage by distorting and "spinning" statistics in their favor.

But the longer the fight drags on over limiting the rights of medical malpractice victims to recover non-economic damages, the more substantial evidence continues to mount that the case for "tort reform" is based on misinformation and, in many respects, outright fabrications.

Here are a few of the things we have learned over the past year or so:

In April 2004, the chairman of the Pennsylvania Medical Society admitted during testimony before the state House Insurance Committee that the medical lobby had no statistical evidence to support its claims of a "doctor exodus" from Pennsylvania. Rep. Thomas Tangretti called the admission "an outrage."

"You've been frightening people, particularly senior citizens, and now we find it was all probably wrong-headed and disingenuous," Tangretti told Medical Society Chairman Dr. Daniel Glunk of Williamsport. "Before you continue to frighten people about access to health care, you better get your numbers right."

According to the American Medical Association, the number of licensed physicians in the state has increased steadily since 1996. Between 1996 and the end of 2003, the number of licensed doctors in the state increased roughly 10 percent, from 36,882 to 40,542. The U.S. Health Services and Resources Administration says Pennsylvania has one of the highest doctor-patient ratios in the country.

In October, the nation's largest malpractice insurer, GE Medical Protective, admitted that caps won't lower doctors' insurance premiums. The revelation was made to the Texas Department of Insurance in a regulatory filing explaining why the insurer wanted to raise physicians' premiums 19 percent a mere six months after Texas imposed caps on medical malpractice awards. In 2003, Texas passed a $250,000 cap on non-economic damages after GE Medical Protective and other insurers lobbied for the change. (Incidentally, GE Medical Protective, also the largest malpractice insurer in Pennsylvania, was recently purchased by business mogul Warren Buffett, which speaks volumes about the profitability of the malpractice insurance industry. Buffett, a multibillionaire, is not known for making bad business investments.)

Two recent studies in Florida and Texas - the only two states that keep track of claims paid out in malpractice cases - found no connection between lawsuit payouts and rising insurance premiums for doctors.

The Florida study, conducted by a group of professors at Duke University and published in October, found no evidence that an increase in lawsuits and large jury awards were responsible for driving up doctors' insurance rates.

The Texas study, conducted by leading law and medical school professors from three universities and released in March, concluded, "We find no evidence of the medical malpractice crises that produced headlines over the last several years and led to legal reform in Texas and other states. The rapid changes in insurance premiums appear to reflect insurance market dynamics, largely disconnected from claim outcomes."

Unfortunately for injured patients in Florida and Texas, the studies were too late. Both states had already imposed caps.

Many of us who oppose arbitrary limits on damages in malpractice cases believe once Pennsylvanians know the facts, they will stand up for the rights of injured patients. We just hope that when that day comes, it's not too late.