Statement of Joan Claybrook, Charleston, West Virginia CLICK HERE to read Public Citizen's study on the Thank you for giving me the opportunity to express the sentiments of 360 Public Citizen members in West Virginia and the consensus of consumer advocates across the United States. Today, Public Citizen is releasing a comprehensive study of the medical malpractice issue in West Virginia, which examined statistics from numerous government agencies and other reputable sources. It is entitled "Medical Misdiagnosis in West Virginia: Challenging the Medical Malpractice Claims of the Doctors’ Lobby." I would like to submit this report into the record. Our report has two principal findings: First, the medical malpractice "crisis" in West Virginia, as in the rest of the country, is not a long-term problem nor has it been caused by the legal system. It is a short-term problem triggered by a brief spike in medical malpractice insurance rates for physicians. This spike in rates is a result of the cyclical economics of the insurance industry and investment losses caused by the country’s economic slowdown. The same forces that pushed up malpractice premiums also influenced the costs of other categories of insurance in West Virginia. In 2001-2002, increases for medical malpractice insurers ranged from 17.9 percent to 26.4 percent in West Virginia. But rate increases for health insurance were as high as 23 percent in 2002, and increases in homeowners insurance premiums were as high as 37.5 percent. Second, a more significant, longer-term malpractice "crisis" faced by West Virginians is the unreliable quality of medical care being delivered – a problem that health care providers have not adequately addressed. Taking away people’s legal rights, as would the proposed cap on "non-economic" damages, would only decrease deterrence and reduce the quality of care. In addressing this second point, I want to begin by clearing up some misconceptions about the civil justice system. Government data show that the median payment to a medical malpractice victim in West Virginia has remained steady, even as the cost of health insurance has increased. Statistics from the federal government’s National Practitioner Data Bank show the median medical malpractice payment in West Virginia through the first nine months of 2002 was $145,000. This is the same amount that it was in 1997. However, the average health insurance premium increased 39 percent over that time period. Health care costs, which caused health insurance premiums to rise, also make up the lion’s share of most medical malpractice awards. In spite of this, payments to malpractice claimants in West Virginia have remained modest. It has been argued that increasing medical malpractice premiums are threatening access to medical care here. But this claim is made while the number of licensed physicians in West Virginia has actually increased. According to the State Medical Board and the Board of Osteopathy, 4,069 physicians were practicing in West Virginia during 2001, rising to 4,077 in 2002. Over the past five years, the number of doctors licensed and residing in West Virginia increased by 9.6 percent, a trend mirrored nationwide. While compensation paid to malpractice victims has been modest, the cost of medical negligence to West Virginia’s patients and consumers has been considerable, especially when measured against the cost of malpractice insurance to West Virginia’s doctors. In 1999 the Institute of Medicine estimated that between 44,000 and 98,000 Americans die each year due to preventable medical errors in hospitals. West Virginia’s proportionate share would be 283 to 630 deaths each year. Based on the institute’s projections, we calculate the cost of preventable medical errors to West Virginia’s families and communities to be from $109 million to $186 million each year. Yet the cost of medical malpractice insurance to West Virginia’s doctors is less than $77 million a year. We believe a tremendous opportunity exists to reduce both the costs of injuries and the costs of insurance. Our analysis of the National Practitioner Data Bank, a comprehensive source of information on medical liability, found that "repeat offender" physicians are responsible for the bulk of malpractice costs. Nine percent of West Virginia doctors have paid two or more malpractice claims, and they are responsible for 62.2 percent of all payments. Even more surprising, just 3.5 percent of West Virginia’s doctors, all of whom made three or more malpractice payments, are responsible for 36.5 percent of all payments. What this means is that if West Virginia regulators stepped in after a second malpractice incident and prevented a third incident from occurring, some 36 percent of the state’s malpractice problem could be alleviated. This is the approach that we are advocating. Unfortunately, repeat offender doctors suffer few consequences in West Virginia. We found that only 25 percent of those doctors who made five or more malpractice payments have ever been disciplined by your State Board of Medicine. And some are not disciplined after 11, 17 or even 21 payouts for malpractice. Today we have presented a capsule description of 20 of these doctors to the Board of Medicine, calling upon them to investigate. I would like to submit our letter into the hearing record. Unfortunately, we do not know these doctors’ names, because the National Practitioner Data Bank, at the American Medical Association’s insistence, is allowed to keep their identities secret. There are a number of things you can do to reduce medical malpractice in West Virginia. First, you can require public access to information about medical errors and malpractice settlements in West Virginia. We urge you to require mandatory reporting of medical errors and malpractice payments. This will give consumers the information they need to evaluate the quality of a provider’s care, and help the market reduce malpractice. Second, you can beef up doctor discipline. You could begin by putting more non-physicians on the state medical board. You could also make sure that the board has the resources to investigate reports of medical errors. Doctors could be required to undergo periodic recertification. Next week we will be presenting a package of reform proposals for your consideration. Finally, I urge you to reject the House bill that calls for a non-economic damages cap and other misdirected proposals. The caps on damages being urged by the insurers and doctors hurt the most those patients who have been injured the worst by doctors. It is an unjust and draconian suggestion. Instead, please address the root cause of this problem. Doctors are a temporary victim of a temporary insurance crisis. The long-term victims are those who have been harmed by doctor negligence, who must live the rest of their lives without loved ones or with the horrible consequences of medical errors. They do not deserve, nor is their any justification for, the horrible fate that is being urged on you by the medical and insurance lobbies.
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