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    Friday, December 30, 2005

    Clueless: Our local newspaper looks at the number of medical licenses in Ohio over the past five years and interviews a trial lawyer and reaches the conclusion that there never was a malpractice insurance crisis:

    Data from the State Medical Board of Ohio don't support the notion that a large number of doctors fled the state in search of lower malpractice-insurance costs. In fact, for the fifth year in a row, the number of licensed doctors in Ohio remains virtually unchanged; in most of those years, there was a slight increase.

    As of July 2005 -- the most recent figure available -- 38,850 doctors were licensed to practice medicine in Ohio. That's slightly more than the 38,190 licensed in 2002, when doctors began lamenting the malpractice insurance crisis in rallies across the state.

    The next two years brought surveys predicting scary scenarios of doctor shortages.

    In one case, 34 percent of doctors surveyed by the Ohio State Medical Association said that they would close their practices within two years if rates continued increasing, while 58 percent said they'd quit within three years. A survey by the Ohio Department of Insurance reported that 40 percent of Ohio's doctors planned to retire in the next three years, even though only 9 percent of the respondents were older than 64.

    Lawyer alleges `scare tactic'

    That was April 2004, and the predictions don't appear to be coming true, said Steve Collier, a Toledo lawyer who sat on the Ohio Medical Malpractice Commission.

    No one, including Collier, doubts that doctors saw huge increases in their malpractice-insurance premiums between 2002 and 2004. There are confirmed accounts of doctors quitting their practice or no longer delivering babies because of escalating malpractice-insurance costs.

    But there has never been a sign that doctors are fleeing the state because of such costs.

    ``The claims were not true then, and they are not true now,'' Collier said. ``They knew it wasn't true. It was a scare tactic when they ran their (state) Supreme Court campaign (in 2004). It was a huge public relations campaign that was very successful for them.''

    Let me just say, first of all, that I have not practiced medicine in the state of New York for fourteen years, but I have a medical license there. It's listed as inactive now, but I kept it active for at least a couple of renewal cycles. The number of medical licenses held in a state is not an indicator of the number of doctors practicing in the state. Doctors keep their licenses after they quit practicing - they never know when they might need it.

    It's true that the insurance premium increases have slowed down - and the article mentions that, to their credit. But that slow down (from increases of 20-30% from 2001 to 2004, down to 6.7% in 2005) is why the past year did not see an exodus of doctors. And one can make a persuasive argument that the slow down in rates was in part brought on by the activism of the medical profession. It wasn't a "scare tactic." If doctors had sat back and said nothing, there would have been no tort reform and no public awareness of the problem. Juries are made up of the public, and their awareness of the costs of careless litigation and careless awards can influence the the verdicts and the payouts.

    A lawyer for an auto-insurance company once told me that jury judgements are cyclical, too, depending on the mood of the country. We go through periods where juries want to sock it to corporations and insurance companies - when rewards are high and findings for the plaintiffs frequent. Then the pendulum swings as people realize that everyone ends up bearing the burden of runaway litigation, and findings for plaintiffs go down, as to the monetary rewards. I haven't fact-checked him, but he's a reliable source.

    There's more evidence that the malpractice environment is improving in Ohio - new companies are starting to come into the market in the state. Two years ago, malpractice carriers were only leaving - not coming. And although two of those companies told The Toledo Blade that tort reform had nothing to do with their decision to return, the Department of Insurance suspects otherwise:

    But Ms. Womer Benjamin said: "They weren't clamoring to come in before tort reform. I'm sure they've taken it into consideration. They know that Ohio has paid attention, that legislators are engaged in the problem, and that is encouraging."

    Truthfully, their arguments suggest tort reform did have an impact. They entered the market when premiums were at their highest and as payouts were decreasing. They're hoping to maximize their profits by avoiding all the losses the older, more established companies took before tort reform.

    But I digress. The malpractice crisis was real, it wasn't a scare tactic. And if rates had continued to increase at 30% a year, more doctors would have quit or moved. It's more than a little disingenous to look back at the tort reform campaign and say it was based on a lie just because it worked. But then, lawyers are good at being disingenous.

    posted by Sydney on 12/30/2005 07:50:00 AM 4 comments


    Aw. Could you say something about the writer who wrote the piece with which you disagree as being disingenuous, rather than a blanket statement? I know I'm a bit unusual, but I've got a joint degree in law and social work, worked at a children and family mental health agency for years and when I read assertions like yours about lawyers being good at being disingenuous, I just cringe. I believe that's how you feel. I believe that the medmal crisis existed. But the lawyers in that area have personalities unlike many other lawyers. And we all know that lawyers are paid to represent their clients as best they can. That that job sometimes make them seem disingenous stinks, but the blanket statement? Just doesn't seem warranted.

    Thanks for the post. Overall, I find your blog to be incredibly intelligent and unique.

    Happy New Year.

    By Blogger Jill, at 8:51 AM  

    Shalom Sydney

    Over the past 30 years three different presidential commisions -- beginning in the Ford administration -- have examined the issue of malpractice insurance and all three reached the same conclusion: there never has been a tort-driven crisis.

    All three concluded that the cause of skyrocketing insurance premiums for doctors was a weak bond market. Insurance companies invest the money they recieve in premiums in the bond market. That's how they make a profit.

    In fact, all three commissions found, when the bond market is particularly strong, the insurance companies sign doctors up with greatly reduced rates just to get them on the books. Neither malpractice, nor a threat of malpractice, is a deciding factor on what rate to set.

    When the bond market is weak, as it was during the '90s when the stock market was strong (insurance companies aren't allowed to invest in the stock market because of the high risk involved) their profits drop and in order to keep profits up, they boost premiums.

    It's as simple as that. All malpractice claims account for less than 1 percent of costs of insurance companies.

    Tort reform is simply about greed. It has nothing to do with a valid threat to insurance companies.

    Doctors, and their patients, are the victums of that greed.



    By Blogger Jeff Hess, at 8:59 AM  

    After years of developing a fondness for the designation as a greedy trial lawyer I am now confronted with the new label, disingenous trial lawyer. It will be hard to merge the two traits. I suppose I could study the way doctors have done it over the years.

    Believe it or not, greedy trial lawyers have faced outrageous legal malpractice insurance rises from time to time over the years. None of these periods were caused by any demonstrated increase in losses by the carriers. They were shown to be the result of a number of factors that changed over time.

    If the greedy, disingenuous medical providers would organize against the carriers instead of being the insurance industry mouthpieces they are, it is likely rates would be brought down without trashing the tort system.

    Of course, if the real motivation of the greedy, disingenous medical providers is to trash the tort system, which does create a recourse for malpractice victims, there would be no reason to examine the historical facts.

    By Blogger Greedy Trial Lawyer, at 10:39 AM  

    The med/mal crisis still exists, although it varies in its severity from place to place. My malpractice premiums have more than doubled in about three years or so, without any judgements against me, or pending lawsuits. And if you don't believe that lots of frivilous lawsuits are a big part of the blame, then just look at what happens in states that enact tort reform.

    In Texas, the number of medical malpractice claims dropped by over 50%, and malpractice premiums are starting to fall. And, as far as I know, that pattern has essentially been repeated wherever caps on non-economic damages and other reforms have been enacted.

    You can show me all the studies you want, but the people out there practicing medicine know whether there's a crisis or not. When physicians I know have had to move because they couldn't get any insurance at any price, and 20% of docs in Florida now are not carrying any insurance etc. there's obviously a big problem.

    And the bond market has little if anything to do with it. My premiums didn't double because my carrier hasn't made enough money in the bond market.

    By Blogger Eye Doc, at 11:16 AM  

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