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Sept. 8, 2005

Doctors, Industry Groups Backing Proposal to Rob
Injured Patients of Their Legal Rights Commit Factual Malpractice

Rebuttal of Public Citizen Report on Washington State's Medical Malpractice “Crisis” Is Inaccurate and Misleading – Just Like the Campaign for Initiative 330

WASHINGTON, D.C. – Doctors and their insurers, who are backing a Washington state ballot initiative to limit patients’ legal rights in cases of medical malpractice, have issued an inaccurate and misleading rebuttal to a Public Citizen report released Wednesday that undermines their campaign claims.

Public Citizen reported that the number and value of medical malpractice payments made to patients on behalf of Washington doctors have declined significantly – contrary to claims made by those bankrolling and supporting Initiative 330 on the November ballot. Jury verdicts have remained flat, and million-dollar payments have fallen significantly, not increased, in recent years, according to the analysis.

Meanwhile, the number of Washington state doctors has increased well beyond the growth in population over the past decade, and there has been even greater growth in board-certified specialists, such as OB-GYNs, emergency room doctors and internists. Public Citizen’s full report is available here

In attempting to rebut Public Citizen’s finding, the Yes on I-330 group – which represents the insurance, pharmaceutical, business and medical establishments – committed factual malpractice:

►Claim: The Public Citizen study has a “glaring blind spot” because the National Practitioner Data Bank (NPDB) does not include malpractice payments made by hospitals, clinics or other health care entities.

Facts: Public Citizen’s report examined malpractice payments made on behalf of doctors, because it is doctors who most prominently complain about increases in the cost of their malpractice insurance. And any third party making a payment for a doctor – whether an insurer, hospital, clinic or other entity – is legally required to report such payments to the NPDB. As the NPDB says: “Each entity that makes a medical malpractice payment for the benefit of a physician … must report” details of that payment.

Chiefly, these third-party payers are insurance companies, but they include others, such as state-run insurance funds and self-insured health care providers. Those making such payments are required to report them to the NPDB under provisions of the Health Care Quality Improvement Act of 1986. The NPDB is the only nationally mandated source of information about payments made on behalf of doctors to compensate patients in malpractice cases. The NPDB covers payments made for doctor malpractice whether the malpractice occurs in the office, a hospital or anywhere else. Looking at amounts paid out is important because insurers’ estimates of future losses to be paid are only that, and often are revised later. Also, large jury verdicts are often later settled at much lower amounts; typically, at the limits of a doctor’s insurance coverage. The U.S. Government Accountability Office has used NPDB data in its research, as have academic researchers whose work is peer-reviewed.

►Claim: Malpractice payment information in the report is inconsistent with similar information in a report Public Citizen did in 2003.

Facts: No, it is not.   Both reports had similar findings – that malpractice payments have not been soaring out of control, as doctors and their insurers claim. In the 2005 report, for example, Public Citizen found that since an inflation-adjusted peak in 1997, the total is down 42.2 percent, from $50.7 million to $29.3 million in 2004.

The nominal, or non-inflation-adjusted payment information underlying each report is alike, as shown in this chart:

 

Year

Malpractice payments as reported in 2003

Malpractice payments as reported in 2005

1993

$44,500,000

$44,500,000

1994

$37,600,000

$37,600,000

1995

$53,100,000

$53,100,000

1996

$37,700,000

$37,700,000

1997

$68,400,000

$68,400,000

1998

$57,400,000

$57,400,000

1999

$60,700,000

$60,100,000

2000

$45,700,000

$44,700,000

2001

$56,100,000

$56,100,000

 

Note: Years shown are those for which data appeared in each report. Totals vary slightly due to rounding and because the NPDB is updated continually.

The only difference between figures appearing in the 2003 and 2005 reports is the basis of presentation. The 2003 figures were adjusted for inflation using 2001 as the base year, while the 2005 figures were adjusted using 1991 as the base year. Either method is acceptable, and each reveals the same trend of changes year-to-year, as shown in the following chart:

medmalchart1

 

►Claim: Public Citizen overstated the growth it reported in number of doctors, because the number of licensed physicians is “completely unrelated” to the number of doctors in active practice.

Facts: The pro-330 group says that not all doctors with licenses are in active practice. But this is not what Public Citizen examined; instead, Public Citizen looked at change in the number of licensed doctors over time. To the extent it’s true that some licensed doctors are not in active practice, that situation will be a constant over time. Therefore, year-to-year comparisons such as Public Citizen made are valid. To say the number of licensed physicians is “completely unrelated” to the number of doctors in active practice is bizarre and unreasonable.

►Claim: In saying Washington state is lax in disciplining “repeat offender” doctors, Public Citizen does not note that many doctors and insurance companies settle malpractice claims whether or not there was medical negligence.

Facts: Once again, Public Citizen looked at the number and amount of malpractice payments made on behalf of doctors over time. Whatever the motivation for a settlement might be, the number of payments stemming from settlements is down sharply – by 36.1 percent, from 285 in 1999 to 182 last year.

“As we’ve long said, and what our latest report makes clear once again, is that the main justification for abusive measures like Initiative 330 – that the legal system is forcing increases in malpractice rates – just doesn’t hold up,” said Public Citizen President Joan Claybrook. “The real solution is to reduce acts of malpractice, which kill and injure many thousands of Americans every year. In Washington state, just 4 percent of the doctors cause 48.1 percent of all malpractice payouts.”

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