MEDICAL MALPRACTICE AND TORT REFORM….My

MEDICAL MALPRACTICE AND TORT REFORM….My head hurts. Is there a doctor around?

I’m sure there must be another policy dispute in which both sides try as desperately as this one to avoid presenting the actual facts and figures, but I haven’t found it yet. All I want is a simple table that shows for each of the 50 states (a) whether tort reform has been enacted, (b) average malpractice payouts, and (c) malpractice premiums rates. The fact that I can’t find it leads me to believe that the actual figures would be damaging to both sides in this controversy.

Still, here are a few miscellaneous items that shed a little bit of light on the situation:

  • Here in California we enacted tort reform in 1975 and it was judged constitutional in 1986. Bush’s proposal is based heavily on California’s law, usually referred to as MICRA.

  • Justene Adamec over at Calblog has a summary of this HHS report that compares experiences in states with and without tort reform. She points in particular to a chart on page 19 of the study showing that premiums have risen much more slowly in California than in the rest of the country. (Her overall conclusion is that tort reform is needed, but payout caps are not a good way of getting it.)

  • However, the HHS report shows only “selected” states and makes heroic efforts not to present a comprehensive table. For a different view of California vs. the nation, check out this report from the Foundation for Taxpayer and Consumer Rights: it says that between 1991 and 1999 premiums went up 3.5% in California vs. 1.9% in the rest of the country. In other words, California did worse than other states. What’s more, it claims that average premiums are only slightly lower in California than in the rest of the country.

  • And there are some other problems as well. Who chose $250,000 as the right cap on pain and suffering payouts? Why is it not indexed to inflation (it hasn’t changed in California since 1975)? The Bush proposal recommends annual payouts instead of lump sums, so why not specify the payout cap in annual terms? And why is this a federal matter anyway? Why not leave it up to the states?

So who’s right? Beats me. The HHS report is obviously selective and biased, but a similar report from the Center for Justice and Democracy also pretty studiously avoids some sensitive topics as well.

There are clearly other problems at work besides jury awards: insurance companies have had to increase premiums recently to make up for investment losses and there has been plenty of documentation of rampant mismanagement during the 90s that has driven several companies out of business. Still, basic data on jury awards by state shouldn’t be so hard to come by. If anyone can help me find it, I’d be grateful.

UPDATE: Dwight Meredith points to this post at the Bloviator for more info. Also, there’s this lengthy 1993 report from the Office of Technology Assessment. Both conclude that caps have an effect on reducing malpractice premiums, but there’s still no state-by-state data. Dwight suggests that good data may be hard to come by because many settlements are confidential.

My head still hurts.

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation