Medical liability tort reform seems like the American medical community’s own recurrent syndrome. Every so often, for reasons that aren’t always clear, tort reform bubbles up as a crisis.
Typically, the trial lawyers say that in fighting tort reform, all they want to do is protect patients against negligent physicians.
The physicians line up on the other side and respond that in pushing for tort reform, they’re the ones who are trying to protect patients from having to pay for the spiraling costs of malpractice insurance, or even from a lack of access to healthcare.
Maybe some laws get passed, the shouting dies down, and the issue disappears as quickly as it arose—until the next time.
A cyclic disorder
Every decade or so since the 1970s tort reform has resurfaced as a major issue, says Keith Hebeisen, a partner at Clifford Law Offices in Chicago, and chair of the American Bar Association’s standing committee on medical professional liability. These crises, he says, are driven by lobbyists for the insurance industry, “using the doctors almost as a front group.”
Over the past 3 decades, every 6 to 10 years would see a huge increase in malpractice insurance premiums, sometimes up to 100%, says Edmund Funai, MD, professor of obstetrics/gynecology at Ohio State University (OSU) in Columbus, Ohio, and chief operating officer of the OSU Health System. “There are lots of theories about why malpractice insurance rates are as high as they are,” says Christopher Bernard, partner at Koskoff, Koskoff & Bieder in Bridgeport, Connecticut.
Insurance cycles of hard and soft investment markets drive, in part, the periodic crises over tort reform, he says, but he also notes that medical malpractice insurers have the highest profit margins among all insurers.
And through these recurrences the tort reform debate hasn’t changed notably in recent years, contends attorney Alice G. Gosfield of Alice G. Gosfield and Associates in Philadelphia, Pennsylvania, a Medical Economics editorial consultant,
Still, there might be reason to hope that this decades-long issue is evolving toward more productive approaches. If there are no breakthrough therapies, in other words, maybe we can hope for better palliative treatments. For example, some new research sheds additional light on the complexities of medical malpractice litigation and its costs.
Along the way, we’ll look at two major disconnects: between tort reform and healthcare reform, and between tort reform and how physicians perceive the risk of litigation.