In America today, it is in vogue to call things by wrong names.
Hence: “malpractice reform,” a Bush-like malapropism served in a sauce of
non-sequiturs.
Doctors claim that they are the real malpractice victims and that
lawyers are the actual culprits. On the contrary, the problem with medical
malpractice is — well, medical malpractice. It is not a stretch to say that it
requires a measure of chutzpah to kill one’s patient (by accident, of
course), then present a petition to the state for relief as the victim.
Hippocrates would gag. Hypocrites don’t.
The Tennessee Medical Association, a group of 11,000 physicians,
seeks to pass a bill capping compensation to victims of bad medicine at $250,000
for non-economic damages, among other things. These and other proposed caps
shift the onus of medical mistakes onto the patient. In effect, Tennesseans will
be asked to clean up their doctors’ messes.
About 5% of the doctors are responsible for over 50% of the claims.
The public-advocacy group Public Citizen estimates the costs of
preventable medical errors in Tennessee to be as high as $586 million a year.
The proposed caps would remove the deterrent to bad doctors and drive up costs
for the rest of us.
In states like California, Texas, and Colorado where such caps have
become law, malpractice premiums actually rose until subsequent
legislation mandated rate reductions. Insurance companies, tort reformers and
such journals as Modern Physician have observed that caps like the
proposed ones don’t reduce physician costs for malpractice coverage and that the
real driver for premium increases is the economy and its vicissitudes.
Under Tennessee’s present laws, which already favor physicians with
a half dozen privileges enjoyed by no other profession, both rural and urban
counties have seen an increase in general practice physicians and
specialists. In fact, Tennessee’s physician outstripped the national average for
the reported period, 1991-2000, and also surpassed the growth in numbers of
practitioners in seven states with caps on non-economic damages. Bottom line:
caps are not needed to lure or retain doctors.
Physicians seek special privileges but do not offer to curb their
medical errors in exchange for this dispensation. There are national practice
guidelines available on publicly accessible websites for physicians to follow,
step-by-step, in the manner of honey-do’s, in treating patients. These
guidelines, if followed, enhance patient safety and can reduce malpractice
rates.
Nonetheless, Tennessee physicians still insist on being judged
under their floppy “locality rule” instead of the practice guidelines. They know
better and can do better. .
Tennessee’s dominant malpractice carrier, State Volunteer Mutual
Insurance Company [SVMIC] is a doctor-owned mutual company insuring its 10,000
member-physicians. SVMIC has a $730 million surplus. Those reserves equal seven
years’ worth of verdicts and settlements, using SVMIC’s own 2004 statistics as a
benchmark.
Another bottom line: If not one dollar in medical
malpractice premium should be collected for the next five years — none, zero,
nada — SVMIC has sufficient reserve funds on hand to defray all reasonable
malpractice verdicts and settlements in Tennessee until 2010.
Each year, SVMIC collects at least $327 million in premiums from
its member-insureds. In 2004, they paid off less than ten final verdicts and
some 444 settlements aggregating approximately $109 million, leaving a surplus
for that year alone of $212 million, after reductions for costs of defense and
administrative overhead. The largest verdict paid in 2004 was $1.6 million, and
there were fewer than ten others paid — all for less than seven figures.
The economic picture of the Tennessee physician’s carrier, SVMIC,
is one of health and stability. It enjoys an “A” financial rating from A.M. Best
Company, the leading agency concerned with insuror solvency.
Finally, premiums for 2005 for malpractice insurance in Tennessee
actually dropped from an 8.5% increase in 2004 to a 4.9% increase for
2005, a 42% decrease in the premium growth rate. Since 1987, SVMIC has
refunded $230 million in premiums to its doctor-insureds.
Physician, heal thyself! There is no crisis in Tennessee medical
malpractice that a good mirror will not fix.
(Mark Ledbetter is an attorney specializing in
medical-malpractice litigation.)
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