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Jan. 23, 2003

Medical Community, Insurers Should Stop Blaming Victims and Work to Decrease Medical Errors

Statement of Public Citizen President Joan Claybrook

Over the past few weeks, you have heard a number of sensational and false claims from the medical lobby about the causes of rising malpractice liability premiums. Doctors blame the legal system for drastic rate increases and hope that work stoppages will persuade lawmakers to cap damages paid to injured patients. Well, they’re wrong about the cause of spiking insurance rates, and they’re wrong about the solution.

We agree there is a temporary crisis in malpractice rates. But the claim by doctors and the insurance lobby that this is caused by a runaway civil justice system has no basis in fact. We are releasing a report today that refutes this accusation.

Here in West Virginia, as in the rest of the country, this short-term spike in rates is the result of the cyclical economics of the insurance industry and investment losses incurred by the industry during the sour economy. Liability insurance premiums do not track claims paid to plaintiffs, but instead rise and fall in direct relationship with the state of the economy. Financial mismanagement by the industry is also a factor. Underpriced premiums, reckless cash-flow policies and ill-fated involvement with Enron and asbestos subsidiaries forced one major carrier, the St. Paul Companies, to stop offering malpractice insurance. This company covered 29 percent of the doctors in West Virginia.

But let’s be clear: There are no runaway juries. Our report, citing government sources, shows that the median malpractice award in West Virginia has actually stayed the same from 1997 to 2002 – at $145,000. In addition, the number of large jury verdicts in the state is steadily declining. There were only two verdicts for more than $1 million in 2000 and 2001, and none reported in 2002.

Yes, malpractice insurance in West Virginia has gone up. But the rate increases, ranging from about 18 percent to 26 percent last year, are very similar to rate increases for health and homeowners insurance for consumers. And the number of doctors in the state is increasing, not decreasing.

The real problem is the crisis of medical errors.

Our report shows that a small fraction of West Virginia doctors are responsible for most of the malpractice. Yet, they face very little likelihood of punishment or loss of license by the state medical board. The way to solve the problem of high malpractice premiums over the long term is to reduce the number of medical errors, not punish the victims. Three years ago, the Institute of Medicine reported that between 44,000 and 98,000 Americans die in hospitals each year as a result of preventable medical errors. That doesn’t count the many thousands of other mistakes that injure patients, most of whom never file a claim.

But neither the medical lobby nor insurers are doing anything about this horrible epidemic.

What has been glossed over in this debate is that a small number of doctors are responsible for the bulk of malpractice claims. Data from the federal government’s National Practitioner Data Bank show that in West Virginia, the 9 percent of doctors who have paid two or more malpractice claims are responsible for 62 percent of all malpractice payments. As we looked deeper, we found that only 3.5 percent of West Virginia’s doctors are responsible for 36 percent of the payouts.

Yet, where are the watchdogs? Where is the West Virginia Board of Medicine? It is not looking out for the safety of patients. It is not taking serious actions against doctors, that’s for sure. When compared to the rest of the nation, West Virginia is significantly over-represented by physicians who have had five or more malpractice payouts against them.

Where was the West Virginia Board of Medicine?

Nowhere to be found. Our research shows that only one out of four West Virginia doctors with five or more malpractice payouts has been disciplined by the board. Thus, without the right to sue such doctors, injured patients have no remedy or protection at all.

Today, we are sending a letter to the board asking it to initiate investigations into the medical competency of 20 doctors who have lost or settled five or more malpractice cases but had not been subjected to discipline as of September 2002. This list includes one doctor who settled 40 lawsuits, another who settled 36 and another who settled 21. But they are still allowed to call themselves "doctors" in West Virginia. I’d like to tell you their names, but the American Medical Association has made sure they are kept secret.

Want to bring down malpractice liability premiums? There’s a good place to start.

The costs of malpractice are very real. We estimate that preventable medical errors cause between 283 and 630 deaths per year in West Virginia. That doesn’t count injured patients, many of whom suffer terribly. In purely economic terms, our report shows that the cost of preventable medical errors to West Virginia residents is estimated at $109 million to $186 million each year. But the cost of malpractice insurance paid by West Virginia’s doctors is less than $77 million.

Most people who are injured don’t even sue. The legal system itself has checks and balances. Judges and juries, who hear all the evidence and arguments of a case, should decide the award – not politicians with lobbyists whispering in their ears. And jury awards are subject to review in at least two levels of appeal.

Capping jury verdicts won’t solve the problem. In California, which has done just that, insurance rates did not fall until the state also reformed the insurance industry. Further, caps on damages will only hurt those who have suffered the most harm – people who have experienced brain damage, spinal cord injuries, operations on the wrong part of the body and other life-altering conditions due to medical errors. It simply isn’t right to tell these people they can’t be fully compensated for the pain of their devastating injuries.

It’s unconscionable that doctors have walked out of hospitals. This is a classic case of blaming the victim. Instead, doctors should be calling on medical boards to better police their own and on the insurance commission to effectively regulate insurance to reflect the costs, not to pump up profits, in hard economic times. Prevention of medical errors is the best remedy.

It would be a travesty of justice for politicians to take away patients’ legal rights in the name of protecting insurance company profits and doctors’ income. This is a prescription for even more medical errors and more suffering, because the legal system is all patients have to ensure just compensation for injury and to force improvements in patient safety.

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