the hands
of powerful insurance companies, rich corporations and politicians. Caps
proponents have also made it clear that they don't
intend to stop with malpractice cases; they want damage
caps in all types of cases, including product liability
and environmental contamination. This broader agenda,
which has been a right-wing priority for decades, was
evidenced by the Pennsylvania House of Representatives'
recent approval of HB 1326, which was amended to allow caps in
all types of tort cases. (See
"Pressure called key to lawsuit limits" / See
Press Release from Pa. Citizens for Fairness) A
one-size-fits-all cap is arbitrary and discriminatory.
It
doesn’t account for the unique facts in every case and it unfairly discriminates against victims with no
lost wages or other economic losses, such as children,
stay-at-home moms, the elderly, the poor and the
mentally handicapped. For example, a highly paid doctor
incapacitated by a medical error would stand to collect
millions in lost future earnings, while his stay-at-home
wife would be limited to $250,000. Why should her life
be worth less?
Non-economic
damages also compensate victims for real, but
hard-to-value, injuries such as loss of fertility,
blindness or loss of sexual function.
Clearly,
caps violate the fundamentals of fairness guaranteed by
the Constitution. (For a more thorough discussion
of the legal ramifications of caps, see Michael
J. Foley's essay.) But will they lower doctors'
malpractice insurance premiums, as asserted by the medical lobby?
The
experience of states with caps shows the answer
to that
question is a resounding NO. (See
Chart) Study after study has shown that caps
have failed to deliver promised reductions in
insurance premiums. (See "Premium
Deceit: The Failure of 'Tort Reform' to Cut
Insurance Rates" by the Center for Justice and
Democracy)
In
June 2003, Weiss Ratings, an independent financial
ratings company, found that doctors' premiums in
Pennsylvania had risen more than
|
A FAIR
FIGHT? Caps
would tip the scales of
justice against average
people and in favor of
wealthy corporate
interests. |
|
|
500 percent over the
past decade, while payouts in malpractice cases had
increased only 50 percent over the same time period. (See
report) The Weiss study found that premiums in states with caps
were slightly higher than in states without them. In a
Scranton Times article (Read
It) on the study, Pennsylvania Deputy Insurance
Commissioner Randy Rahrbaugh said, "There
is little evidence to show that caps solve the medical
malpractice crisis."
"I feel like I've been
duped. (The debate) pitted doctors against lawyers because I think there's a natural rivalry, but a lot of my colleagues were hoodwinked."
Dr. Kelly Thrasher, Sandy Springs,
Ga., June 16, 2006
Speaking more than a year after caps were passed in
Georgia
READ
MORE
In
California, a state often cited as a national model
by the medical lobby, doctors' premiums rose 450 percent
between 1975, when the state adopted caps (MICRA), and
1988 when the state's frustrated voters adopted
Proposition 103, which imposed tough regulations on the
insurance industry. (See
fact sheet) For a detailed analysis of
California's tort reform experiment, check out "How
Insurance Reform Lowered Doctors' Medical Malpractice
Rates in California," a report
by the Foundation for Taxpayer and Consumer Rights. A
July 2004 study by the Rand Corp. (Read
LA Times story) found that any savings realized by
California's caps came at the expense of the most
serious injured patients. It also found:
-
In most cases – 55 percent – non-economic damages don’t even exceed $250,000, so the cap is really unnecessary in the first place.
-
Caps unfairly discriminate against victims with very real injuries, but little economic losses, such as the woman cited by the study who underwent an unnecessary double mastectomy.
-
No one can independently determine whether caps have lowered doctors’ premiums because insurers won’t open their books. What are they trying to hide?
|
In
fact, insurance executives have repeatedly admitted caps won't
result in lower premiums. Here are a few examples:
-
In
April 2003, an executive from Scpie Holdings, one of
California's largest malpractice insurers,
acknowledged that caps "did not substantially
reduce the relative risk of malpractice insurance in
California." (See
testimony)
-
In
a June 2002 Wall Street Journal article, “Insurers’ Missteps Helped Provoke Malpractice Crisis” Donald J.
Zuk, chief executive of Scpie Holdings, said, "I don’t like to hear
insurance company executives say it’s the tort [injury law] system – it’s self-inflicted.”
-
Frank B. O’Neill, a senior vice president of medical malpractice carrier Pro-Assurance was quoted in the Scranton Times on October 20, 2002: “Nobody is saying that tort reform is going to reduce rates. Certainly,
it's better than doing nothing, but it would be false hope for people to think
it's going to result in any immediate rate decreases. Nobody should have ever represented that to be the case.”
-
Sherman Joyce,
president of the American Tort Reform Association, told Liability
Week magazine: “We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates.”
-
Victor Schwartz, the Association’s General Counsel, told Business Insurance,
“... many tort reform advocates do not contend that restricting litigation will lower insurance rates, and I’ve never said that in 30 years.”
-
The American Insurance Association even released a statement
in March 2002, acknowledging, “[T]he insurance industry never promised that tort reform would achieve specific premium
savings ...”
For
more admissions from the insurance industry that caps
won't lower insurance premiums, see "Industry Insiders Admit – And History
Shows: Tort Reform Will Not Lower Insurance Rates". It
is clear that caps will only take away
victims' rights and WON'T solve the problem of rising
insurance premiums. While
doctors are entitled to protest outrageous premium
increases, they shouldn't be trying to TAKE AWAY OUR
RIGHTS. The only
way to solve today's
malpractice "crisis" and make sure we don't
have another one in the future is by regulating the insurance industry and
eliminating
medical errors. |
