Insurers: Prove the high payouts

Steven P. Collier

MUCH attention has been focused lately on rising medical malpractice premiums and their effect on how physicians practice medicine or whether they will even stay in practice. The issue can easily be a polarizing one. Usually the physicians and their respective organizations line up against trial lawyers and the individual victims whom they represent.

The animosity between lawyers and doctors in South Carolina prompted one physician to call upon his fellow doctors to not treat the families of trial lawyers who represent medical malpractice victims. This is clearly not the direction that should be taken.

Perhaps a new approach is needed that focuses not upon the doctors or lawyers, but upon the patient. Few would argue that in this new world of corporate medicine it is often the patient who suffers most.

Insurance firms require patients to frequently change physicians, and many patients have no health coverage at all. Physicians also suffer under this system because insurance companies limit their reimbursement rates and their ability to choose the tests they may think are appropriate for a patient.

In fact, when one Toledo pediatrician spoke out recently on the issue of having one Toledo children's hospital with the intended effect of improving patient care, he was silenced by one of the local corporate giants in medical care.

Specifically, as to the medical malpractice issue, it should be a common goal of all parties concerned to first reduce medical error, which would in turn reduce patient suffering and have the logical effect of eliminating the number of claims that enter the civil justice system.

If this would not result in a corresponding reduction in insurance premiums, the medical malpractice insurers in Ohio would have some tough questions to answer.

Unfortunately, the vast majority of resources on the subject are spent at the other end of the problem, namely reducing the ability of a patient to recover in a lawsuit once the malpractice and resulting injury has occurred. This is done through arbitrary caps on damages and other measures of legislation commonly referred to as "tort reform."

To make matters worse, the assumption that reducing the ability of victims to recover will lead to lower premiums has not been substantiated. For instance, Ohio Senate Bill 281, which became effective in April, 2003, limited the ability of medical malpractice victims to obtain full recovery for their non-economic loss.

Yet malpractice premiums continue to rise in 2004. Rather than questioning these increases, many in the medical and insurance community push for more and more measures that restrict the right of those most seriously injured to recover.

One argument often raised is that the tort reform measures first need to survive a constitutional court challenge before the insurance companies will lower their rates and that this could take several years.

Doctors and their organizations should be challenging the insurers to guarantee a refund for premium overpayment if the tort reform measures are upheld by the courts as the premiums they are now paying are apparently not taking the measures into consideration.

The focus has often been upon physicians leaving Ohio because of an out-of-control legal system. The evidence does not support this proposition.

Filings in medical malpractice cases in Ohio have remained fairly stable over the last 10 years. When judges and attorneys who handle the complex cases are interviewed, they routinely state that "frivolous lawsuits" are not a problem.

The reason for this is that it is quite expensive to pursue a medical malpractice case through litigation and, as a result, most plaintiff's attorneys are very careful to screen cases and only pursue cases where there is a reasonable chance of recovery supported by expert physician testimony that malpractice has occurred.

One of the efforts of the Ohio Medical Malpractice Commission, which was created by Senate Bill 281, is to have the legislature pass a law that will require medical malpractice insurance companies and other self-insured medical providers to release data to show what they pay on malpractice claims so that all can see if the premium increases are justified.

Before additional measures are enacted that restrict patients' rights, it would seem logical to have the data released and scrutinized first, as opposed to passing legislation based upon anecdote and rhetoric. It would be helpful for insurers to voluntarily release this data now. If their payouts on claims are high, it seems they would want to provide the proof.

While we are waiting for the data to come in, important measures can be taken to improve care. In 1984 the American Society of Anesthesiologists began a Closed Claim Project which critically analyzed malpractice cases in an effort to reduce medical error and improve patient care.

As a result the ASA developed standards for ensuring patient safety and, remarkably, the number and severity of their claims dropped. The result was a win for patients and physians.

The reputations of attorneys and physicians have suffered, and it is time to return to a higher calling that focuses upon the client and patient respectively.

The beneficiary of these two professions working together to address the problem can only be the recipient of the medical care: the patient.

Steven P. Collier is a Toledo attorney and past president of the Ohio Academy of Trial Lawyers.