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Medical malpractice "reform" on the front burner again

Legislation could stifle valid claims and limit patients' compensation.

We have written in the past about the myth of a medical malpractice crisis. Now the new Congress and incoming White House administration are talking again about "frivolous" lawsuits against doctors and the need for tort reform.

First of all, medical malpractice lawsuits are almost never frivolous. And complaints by some lawmakers about an avalanche of jury awards and skyrocketing rates for malpractice insurance are just fake news. Industry experts say there is no crisis - medical lawsuits and malpractice premiums have actually declined.

Victims of malpractice do not get rich. But doctors, medical centers and insurance companies do benefit financially from tort reform, by making it harder to sue or placing artificial caps on monetary damages.

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The myth of the frivolous medical malpractice lawsuit

Congressional Republicans have restarted the conversation on tort reform. A tort is a wrongful act - such as a medical error - for which the victim can pursue civil remedy. Proponents of tort reform claim that "lawsuit abuse" forces doctors out of business and drives up health care costs. But medical and legal experts say the medical malpractice crisis does not exist:

· Frivolous lawsuits - In Hawaii and many states, you cannot even file a medical malpractice lawsuit without an affidavit from a qualified physician who has examined the facts. Also, the cost of litigation is too high to justify a half-baked claim. People who bring malpractice suits have suffered real and serious harm.

· Rampant litigation - The number of medical malpractice lawsuits is actually down 50 percent since 2003. Nor is there evidence of more verdicts in favor of plaintiffs or higher awards. Just a fraction of malpractice claims result in a settlement or a jury award.

· Malpractice insurance - Premiums are the lowest in 15 years, according to one of the largest insurers of physicians. If doctors are leaving the profession it's not because of unaffordable insurance.

· Defensive medicine - Tort reformers say that doctors order unnecessary tests and treatments out of fear of being sued, but greatly exaggerate the costs of defensive medicine. One Congressional leader claims it adds up to "hundreds of billions of dollars" of waste to the system. Industry experts calculate that defensive medicine, at most, is 3 percent of health care spending. In tort reform states, doctors do not practice defensive medicine any less. And those extra precautions do prevent many tragedies.

A cap on damages victimizes patients a second time

One of the key tenets of tort reform is a capping non-economic damages - compensation for pain and suffering, permanent disability, mental anguish, or loss of enjoyment of life.

In a 2014 case, the Florida Supreme Court struck down a cap on non-economic damages in medical malpractice litigation. That court said it was arbitrary to single out victims of medical negligence, and found no evidence of an increase in frivolous lawsuits or outrageous jury verdicts. Also, tort reform did not lower malpractice premiums; any savings were not passed along to doctors.

Other states have repealed caps on medical malpractice damages because they unfairly punish patients: (1) Victims are denied their rightful compensation under the law. (2) Without the possibility of full damages, law firms cannot afford to pursue otherwise valid cases of malpractice.

Hopefully, the full Congress sees the folly of a federal cap on medical lawsuit damages. Let your senator or representative know that you do not support tort reform at the expense of citizens. Imagine if it was your family member.

Source: Top Republicans say there's a medical malpractice crisis. Experts say there isn't. (Washington Post)

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