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    Sunday, June 27, 2004

    Herbert Strikes Again: New York Times columnist Bob Herbert fires another salvo against the medical tort reform movment. In Friday's column he accuses the AMA of manufacturing the crisis:

    Just last January the nonpartisan Congressional Budget Office said this about the link between high malpractice premiums and the availability of physicians in various specialties:

    The General Accounting Office "investigated the situations in five states with reported access problems and found mixed evidence. On the one hand, G.A.O. confirmed instances of reduced access to emergency surgery and newborn delivery, albeit `in scattered, often rural, areas where providers identified other long-standing factors that affect the availability of services.' On the other hand, it found that many reported reductions in supply by health care providers could not be substantiated or `did not widely affect access to health care.'

    But Mr. Herbert has left out a critical statement from the GAO's report:

    Multiple factors, including falling investment income and rising reinsurance costs, have contributed to recent increases in premium rates in our sample states. However, GAO found that losses on medical malpractice claims - which make up the largest part of insurers' costs - apppear to be the primary driver of rate increases in the long run. (emphasis mine)

    And here's the House Joint Economic Committee:

    Between 1994 and 2001, the typical medical malpractice award increased 176 percent to $1 million.

    And the American Academy of Actuaries. (All of these sources are from the excellent Point of Law.) Look at those graphs from the actuaries and tell me there isn't a problem with the tort system.

    Herbert then goes on to look at malpractice claims in a few selected states:

    Moreover, in several states specifically characterized by the A.M.A. as in "crisis," the evidence is rolling in that malpractice claims and awards are not appreciably increasing, and in some instances are declining.

    The A.M.A. has its crisis states marked in red on a map of the U.S. on its Web site. One of the red states is Missouri. But a press release in April from the Missouri Department of Insurance said, "Missouri medical malpractice claims, filed and paid, fell to all-time lows in 2003 while insurers enjoyed a cash-flow windfall."

    Another red state on the A.M.A. map is New Jersey. Earlier this month, over the furious objections of physicians' representatives, a judge ordered the release of data showing how much was being paid out to satisfy malpractice claims. The judge's order was in response to a suit by The Bergen Record.

    The newspaper reported that an analysis of the data showed that malpractice payments in New Jersey had declined by 21 percent from 2001 to 2003. But malpractice insurance premiums surged over the same period. A.M.A. officials told me yesterday that they thought the New Jersey data was "incomplete," but they did not dispute the 21 percent figure.

    The Missouri Medical Association noted that the state's Department of Insurance report on medical malpractice claims was heavy on the political spin. It wouldn't be surprising if the same sort of spin is behind the newspaper's reporting of the malpractice numbers. The numbers from New Jersey come from an editorial in the Bergen Record (registration required), which makes them impossible to analyze or to verify. Then there's Florida:

    Last summer a legislative committee in Florida, another red state, put insurance executives, lawyers and medical lobbyists under oath in an effort to get to the truth about malpractice costs. When questions about frivolous lawsuits arose, Sandra Mortham, the chief executive of the Florida Medical Association, told the panel, "I don't feel that I have the information to say whether or not there are frivolous lawsuits in the state of Florida."

    The definition of "frivolous" is one that is difficult to agree on, so Ms. Mortham was understandbly reluctant to make a statement. A lawyer may say that any outcome which is less than the outcome the patient expected is a justifiable reason for a suit. But a doctor may say that if an outcome is a complication that is known to happen as a result of the disease or a procedure, even if it isn't the perfect outcome the patient expected, is not a justifiable reason to sue.

    Bob Herbert has selectively presented one side of the issue, as he so often does.

    But at least one letter writer to the Times points out that
    reform is what we need:

    What's needed is a new system of medical justice that can make deliberate, predictable choices on standards of care. Specialized health courts — like those that exist for tax issues and workers' compensation — could begin to restore the reliability needed to heal American health care.

    That's not a bad idea. Although, workers' comp cases often drag on forever.

    posted by Sydney on 6/27/2004 06:27:00 AM 0 comments


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