In January I discussed that Kentucky and many other states are passing Tort Reform legislation. The main argument that these state governments are making is that changes are necessary due to soaring medical malpractice costs for doctors and health care providers as the result of “frivolous” lawsuits. The medical community is claiming that both insurance premiums and medical malpractice claims are climbing. I cited a 2016 study by Americans for Insurance Reform (a coalition of consumer and public interest groups) that showed both premiums and claims for doctors are at their lowest level in forty years when adjusted for inflation. Additionally, the study illustrated that doctors’ insurance premiums have fallen across the board and, by contrast, are higher in states that have tort reform as opposed to states without tort reform.
Another study has come to light showing a significant decline in medical malpractice costs for doctors in the United States. The March, 2017 issue of JAMA (Journal of The American Medical Association) published a study by researchers at Brigham and Women’s Hospital which analyzed claims data from the National Practitioner Data Bank (NPDB). The NPDB was created in 1986 by Congress to centralize data on paid medical malpractice claims. The researchers determined that the overall rate of claims paid from all physicians decreased 55.7% from 1992 to 2014. All medical specialties experienced a drop in claims paid. The most common allegation in a malpractice claim was an error in diagnosis (31.8% of claims), followed by surgery error at 24.5%. Thirty two percent of medical malpractice claims involved the death of a patient.
The Kentucky Department of Insurance confirms that preventable medical errors lead to at least 2,700 deaths a year in Kentucky, yet there are fewer than 500 malpractice claims filed each year. Most attorneys will not take a so-called “frivolous” lawsuit against a doctor or hospital. Plaintiff’s attorneys (medical malpractice attorneys) usually front all expenses for a malpractice case, and if the case is not settled or does not receive a plaintiff’s verdict in court, the attorney receives no fee and must cover the lost expense. It does not make good business sense to take a “frivolous” case. Therefore, if medical premiums are decreasing, if medical malpractice claims are decreasing and if lawyers are carefully screening potential medical malpractice cases, why is Tort Reform such a hot topic right now? The answer is that changes in tort laws will likely benefit doctors, other healthcare providers, and health insurance companies. Meanwhile, patients and their families who have suffered from injury or death as the result of medical errors will face more and more obstacles in seeking legal justice.