CostRx: Kill all the tort reformers?

June 28, 2006 at 8:57 AM
share with facebook
share with twitter

WASHINGTON, June 28 (UPI) -- As the debate simmers on over the cause-and-effect relationship between medical tort payouts and what doctors say is a medical malpractice crisis, United Press International talks with Ken Suggs, president of the Association of Trial Lawyers of America, who says the issue is more about politics than a real crisis.

Suggs makes a case for why lawyers who sue doctors are being unfairly singled out as primary drivers of soaring U.S. healthcare costs.

Q. Is the medical malpractice reform issue the biggest for your group at the moment?

A. I think it's one of the most frequent issues we have to work on because the proponents of this legislation on a national level just keep bringing it back and bringing it back and bringing it back, notwithstanding the facts and the results that they get.

Q. Why do you think the debate over whether medical tort suits are causing a medical malpractice crisis keeps coming back?

A. It keeps coming back on a national level because Senator (Bill) Frist wants to run for president and this is a way for him to raise money. That's really all it amounts to right now, because it's clear that the U.S. Senate has seen through the so-called crisis, realizes there's not a crisis in healthcare and they're not going to pass this.

Q. So you predict that if another tort reform bill is introduced, it'll meet the same fate?

A. Absolutely.

Q. Nonetheless, medical tort plaintiff lawyers have become one of the main poster children for why healthcare costs are skyrocketing. What would you say to convince skeptics that there's a disconnect between high medical tort payouts and doctors leaving certain specialties due to high malpractice premiums and practicing defensive medicine due to fear of lawsuits?

A. First of all, the difficulty with our position is that it requires people to think and to look at the facts, rather than to react emotionally. It's easy to react emotionally when doctors get together and say, "Gosh, (obstetricians) are leaving the state." Well, they've said that about every single state, so, number one, where is it that they're going? If they're leaving any kind of state, they're going somewhere, because there's more (OBGYNs) in America now -- 25 percent more -- than there were in 1990.

Secondly, if you look at payouts in medical malpractice cases, which (consumer advocacy group) Public Citizen did last year, payouts have remained flat for more than 10 years, and over the last four years have been dropping. So between 2001 and 2004, for example, the number of payouts on behalf of doctors fell about 14 percent.

(In addition) medical malpractice premiums are going up, so where is that money going? And the fact is, it's going into insurance companies' pockets. If you read the insurance company newsletters now, you'll see reports of insurance companies -- quote and unquote -- cannibalizing each other's business to get those premium dollars, because the relation (between) premiums and payouts is so good.

Q. But isn't it possible that, even if there are just as many OBGYNs as there were 10 years ago, or even more, they're increasingly refusing to perform procedures such as high-risk deliveries due to fear of liability?

A. The only places where people have trouble finding an OBGYN to do any procedure are in rural, poverty-stricken areas, where the OBGYNs don't want to live and practice. I do a lot of obstetrical negligence cases, and the cases seem to come out of poor areas. You see people getting better healthcare in big, urban centers, for the most part -- although mistakes are made there, too -- and that's where the doctors want to live.

They want to live in nice places with good schools where they can raise their families, and they don't want to live out in the country and they certainly don't want to be the only OBGYN in some rural county, meaning they have to cover all of the deliveries all the time and never get a day off. It's working conditions that make this difference; it's not medical malpractice premiums.

Q. But in Texas, where caps on "pain and suffering" medical tort damages were imposed, a study presented earlier this year at the American Enterprise Institute suggested that the caps have prompted a return of hundreds of doctors to the regions in that state that had seen doctor shortages. Isn't that evidence of cause and effect?

A. The caps (in Texas) only passed a couple years ago, so I have a lot of skepticism about whether you could do a valid study right now on any effect of those caps. For one reason, because none of the cases that are affected by the caps are hitting the courts yet, because there's usually at least a two-year delay between filing a case and getting to court. So I don't think you could really do a valid study to determine the affect of those caps on OBGYNs (access).

And the other thing you have to realize is, you can cap the non-economic damages for OBGYNs or neurosurgeons, but it doesn't really have much of an effect on (the doctors') premium at all because the major component of a case where an OBGYN commits negligence in delivering a child is the economic damages. The economic damages for a brain-injured child will run into a minimum -- in a rural state or a rural county -- of 2 or 3 million dollars and can be as much as 10 or 12 million dollars.

Q. But in emotionally charged cases like that, aren't juries likely to award high pain-and-suffering damages as well, resulting in the soaring awards your opponents on this issue are talking about?

A. It's been my experience that juries are very frugal with non-economic damages in cases where they are already awarding what seems to them to be an awful lot of money.

Q. Have there been studies on that?

A. To my knowledge, no, but everybody studies everything in the United States, so somebody's probably studied it sometime. I don't know of any studies on the proportion between economic and non-economic damages in catastrophic injury cases, so I'm giving you anecdotal experience, from my own experience.

Q. How would you answer critics that suggest that medical tort plaintiffs are being made whole through economic damages, and that, since pain-and-suffering damages are intangible, those damages are ripe for some limits to help cut healthcare costs, while ensuring that medical tort victims are still compensated?

A. Well, let's look at what that does. Let's take the person who is seriously injured and who is going to have to spend large amounts of money throughout the rest of her life for medical care. And that person is also not going to go to the prom, graduate from high school, get to go to college, go to a football game and on and on and on.

And that person may suffer with pain every day of her life. Now if you say "OK, well we're going to fully compensate you and pay all of your medical bills," all that means is you're going to pay the doctors. The doctors in the end are going to get all of the money and the person who's suffering everyday because of a doctor's mistake is going to end up with nothing.

Q. But what about critics who say you can't put a price on a lost leg, for example?

A. You can make that argument, but the fact is, yes, you can. And juries have been doing it for years and years. We do it in a more limited way, by the way, with worker's compensation statutes, where if a worker loses a leg, there's a value placed on the loss of the leg. And when the U.S. government is making estimates of whether to carry out certain programs, they have a way of estimating the value of a human life and weighing it against the cost of a program. So it's disingenuous to say you can't do that. And the fact is, juries have been doing that as long as there's been an America, and they've been doing it -- for the most part -- very reasonably.

Q. So keeping pain-and-suffering damages unlimited is a matter of public policy?

A. The person who is hurt, who has had their life changed for the much worse, certainly don't they deserve some kind of compensation for putting up with that? Or are we just going to say, "No, all we care about is economics and insurance premiums and making insurance executives rich, so that (injured) person is just going to have to suck it up." That's not the American way. The American way is to make the person who did the harm responsible for all of the harm, not just part of the harm.

Trending Stories