EDITORIAL The tort reform quagmire: A problem for everyone

In his second term, President Bush has again raised the issue of medical tort reform as a major agenda initiative. In his first term such reform proposals met their demise in the Senate. In spite of a lack of action at the federal level, approximately 21 states have passed some form of tort reform legislation in recent years.¹ Not surprisingly, in many states, these new laws are being challenged in the courts.¹ Anyone who has undertaken even a cursory review of this subject will realize immediately that it is immensely complicated. Trial lawyers, physicians, medical insurance companies, health maintenance organizations (HMOs), and, of course, the recipients of medical care, our patients, have a vested interest in any changes that occur. As in most public debates, all parties can play fast and loose with the facts, emphasizing only those points that favor their position, and expounding inflammatory rhetoric, hyperbole, and sound bites in many cases. In all such complex issues both the cause of the problems and any potential solutions lay with all concerned parties, require acknowledging the contribution of each to the problem, and, of course, demand willingness to compromise.

In a quite simplified version, the following issues seem to be at the core of this matter.

Many doctors are being priced out of practice (particularly in high-risk fields such as obstetrics, neurosurgery, and emergency medicine) by lofty and fast-growing malpractice premiums. They are either leaving medicine, retiring early, or moving to other states with lower premiums (for the moment).

Insurance companies charge high premiums to make money (they are, after all, businesses with stockholders) and to compensate for ever-increas-ing settlement costs and jury awards.

Lawyers representing injured clients seek actual economic and punitive damages. They typically collect 30% to 50% of any awards in compensation. They argue that this is justified by the very high cost (risk) in pursuing malpractice cases and the high number of cases in which the physician defendant prevails. Plaintiffs prevail in roughly 25% of cases.²

Juries may impose exorbitant punitive damages that are unrealistic.

Healthcare recipients expect expert care from physicians, who are usually well-compensated, at a reasonable cost with appropriate redress for substandard or injurious practice.

Physicians do not impose strict enough oversight of their profession to identify those members who require further training, monitoring, and incentives to improve their practice skills.

The costs of healthcare are rising at an unsustainable rate for individuals, businesses, and government.

A cap of $250,000 on “pain and suffering” awards for medical malpractice lawsuits only provides a weak band-aid solution. The Congressional Budget Office says the President’s proposal would lower medical malpractice premiums by 25% to 30%.³ A recent study estimates that caps on recoveries have reduced premiums by roughly 17% for states with caps compared with states without caps.¹

The following are some suggestions of areas for which action may be warranted:

These few suggestions are, of course, biased, as they come from a practicing physician, but I hope they reflect at least some balance in considering the many roots of and potential solutions for the current and growing malpractice dilemma. If nothing else, I hope they spur discussion among our readers and their associates or contacts in medicine, law, government, hospital administration, quality improvement/risk management, and even malpractice insurance firms, since all are part of both the problem and the solution.