Cross-posted on www.democracyforwashington.com
I've been doing some research.
There's a stack of papers in front of me right now, and I really, really need to share some thoughts on 'tort reform'. Mainly because it's an issue that the right has placed before us, and there are interesting aspects of it that I haven't thought of before, and want to get some people behind an initiative here in Washington that can do some good for us, our doctors and our state as a whole.
First off, I'm not comfortable with using the term "tort reform," it implies that there is something drastically wrong with our civil legal system, and that it needs to be 'fixed.' There is an implied infliction that causes pain or suffering. And the implication is that we, the people, are the ones who suffer at the hands and to the benefit of the `trial lawyers.'
When in reality, the ability for a citizen to be protected from the massive distribution of defective products and irreverent doctors is a right that is unique, and will be tested over the course of the next few years here in Washington. We saw the beginnings of it in the 26th LD as doctors campaigned against Pat Lantz.
The right would like you to believe that there is a `tort tax' of about $809 per person in the United States. They would like you to believe that there are rampant lawsuits brought on by greedy ambulance chasing attorneys.
The facts are this tool has helped to bring about reform. It took asbestos out of the marketplace when the EPA would not. The use of thalidomide, the Pinto as well as the Bronco II and the Explorer in the 90's were all removed from the market because of the looming lawsuits that would come from a defective product.
There are some players in the world of medical malpractice. There are the doctors (of course) there are the insurance companies, there are the consumers and there are the trial attorneys.
As I see it, things start with insurance companies. They take the premiums from many, and pay claims when necessary. Because the can't have a large amount of money lying around not doing any work, they invest it.
Unfortunately, when the market tanks, so do their returns...and the best way to recuperate the loss is to increase premiums. When it's good, they decrease the premiums or take on riskier cases. However, they don't say that to their clients, as it would cause them to go elsewhere. They tell their agents that the costs are directly related to the increase in malpractice suits and the greedy lawyers.
The doctors then serve as proxy spokespeople against the world of trial attorneys...and we all trust our doctors. So they say that a cap would help slow the rate of increase. It must have worked somewhere, right? Well, sorta, but not really.
Enter California.
It is cited as being one of the places in the country where award caps have slowed the increase in insurance premiums for doctors. In the 1970's they instituted a cap on monetary rewards, at $250,000.
Seems reasonable, right?
Well, except that it was frozen, with no escalators for inflation. The premiums continued to track at the same rate as national increases. There was no change. It took until the 1980s for another measure to hold the insurance companies accountable. Once reviews for premium increases or decreases when into effect, the premium increases dropped dramatically.
Holding the insurance companies to the fire is what did it. In fact, GE, one of the nation's largest medical malpractice carriers said that caps in Texas had no bearing at all on their premiums, and they would be increasing them again.
Caps also limit our rights as people, and the issue becomes a magnet for corporations, giving them reason to pour millions of dollars to go against anyone who is against caps.
Caps ignore that a small portion of the medical community is responsible for 80 percent of the malpractice cases.
Caps ignore that many doctors who have made mistakes go unpunished and continue to practice.
Caps ignore the role of insurance companies.
Caps also ignore the role of attorneys who are gaming the system using questionable means of science.
Enter I-336, what I call a common sense, multi-pronged approach to fixing the `problem.'
I-336 site
(www.bettersafercare.com)
This initiative does three things:
1. Protects doctors from insurance price gouging
2. Holds bad doctors accountable for preventable medical injuries and deaths
3. Curbs costs by stopping frivolous lawsuits.
What I appreciate about this initiative is that it holds doctors accountable, in that if they have 3 jury verdicts in 10 years they are disciplined. Upon request, it requires health-care professionals to disclose all malpractice history to patients and families upon request.
It requires insurance companies to justify all major rate hikes, with mandatory public hearings for rate changes above or below 15 percent.
Requires attorneys who file medical malpractice lawsuits to submit a certificate of merit verifying that a qualified medical expert says the lawsuit has merit. Failure to do so will mean sanctions and payment of the defendant's legal costs.
So the solution covers all three arenas, and, above all, it just makes sense.