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No Medical Malpractice “Crisis” in Washington State; Damage Caps Would Harm Those Most Injured, Wouldn’t Lower Rates

April 25, 2003

No Medical Malpractice “Crisis” in Washington State; Damage Caps Would Harm Those Most Injured, Wouldn’t Lower Rates

Statement of Public Citizen President Joan Claybrook

We are here today to discuss an issue that is probably one of the most misrepresented and misunderstood issues in this country today. Most people don’t know that medical malpractice kills tens of thousands of people annually and injures many more. Yet some Washington state lawmakers are trying to limit the rights of citizens cruelly injured by negligence to be compensated in court, blaming the victims, rather than the insurance companies, which have recently raised medical malpractice insurance rates and falsely blamed malpractice lawsuits.

The facts do not support this proposition.

Here in Washington and in states throughout the country, doctors and insurers claim there has been an explosion in medical malpractice litigation that has forced a huge increase in medical malpractice premiums. In a few states, doctors are even walking off the job in protest, claiming that their malpractice rates are so high they can no longer afford to practice medicine. All pretty dramatic stuff, designed to provoke an atmosphere of crisis.

But they are deliberately deceiving the public and clearly have not done their homework. Public Citizen has been intensively researching the causes of malpractice insurance rate changes. In the 11 states we have studied, we found that the legal system has nothing to do with malpractice insurance rates.

In Washington, there has been no increase in the dollar value of medical malpractice payouts over the past decade, when adjusted for inflation. And the number of medical malpractice payouts in 2001 is about the same as in 1993. The amount of payouts per doctor has dropped dramatically since 1997 when adjusted for inflation. Nor has there been any meaningful increase in the number of malpractice lawsuits filed in the state. In 1994, there were 452 medical malpractice lawsuits filed, compared to 465 in 2002.

Contrary to assertions of many, doctors are not fleeing Washington. In fact, Washington continues to experience a steady and significant increase in the number of doctors. Today, there are about 1,500 more licensed doctors in the state than in 1999.

Malpractice rates for certain specialties are rising because insurance industry profits are suffering in the current economic downturn, just like everyone else. When times were good, insurers underpriced premiums to lure new business. At the time, it didn’t matter, because bond and stock markets were paying huge dividends and the economy was on a roll. Now, times have changed, and investment and interest income is down. Insurers are compensating by spiking their rates.

However, responding to this manufactured crisis, lawmakers in Washington and other states have proposed capping non-economic damages, which are those awarded for pain and suffering, at $350,000. This would greatly harm those patients who have been most damaged by medical malpractice while doing nothing to lower rates. Those who have been blinded, paralyzed, disfigured, brain-damaged or otherwise horribly injured would receive a pittance. For instance, a 20-year-old survivor of medical malpractice with a normal life expectancy, who is confined to a wheelchair because of a medical error, will receive $12 a day. That’s hardly fair.

Damage caps discriminate against children, seniors, homemakers, minorities and others who earn less of have little or no lost wages to recover. They keep legitimate cases out of court, because in many cases, the caps make it not worth the considerable costs of bringing a case against wealthy insurance companies. If juries can decide the death penalty, they can certainly decide the amount of compensation that a person injured by medical malpractice should receive.

Damage caps are an affront to the public and a reward to big corporations for their financial support of lawmakers. What’s more, they won’t lower malpractice rates. Even insurers have said that they would not lower malpractice premiums if damages were capped. Further, $250,000 is an arbitrary number; there is no basis in fact for it.

The real problem is an epidemic of preventable medical errors, which nationwide kill up to 100,000 people each year and injure hundreds of thousands more. Most malpractice is caused by just a small number of doctors. Public Citizen has learned by analyzing data in the National Practitioner Data Bank that in Washington, just 3.5 percent of the state’s doctors, all of whom have made two or more malpractice payouts, have been responsible for 43 percent of all payouts since September 1990.

In Public Citizen’s annual ranking of state medical boards, Washington state’s medical board came in 41st – one of the worst. That reflects the rate of serious disciplinary actions (such as license revocations, surrenders, suspensions and probation or restrictions) per 1,000 doctors in the state.

Tying the hands of juries, as pending malpractice legislation would do, is not the answer. Courts are the only place injured patients can turn, and we should not take this recourse away. Eighty-five percent of Washington doctors have never made a malpractice payout. Most doctors are skilled and careful. But medical boards must crack down on the few doctors who repeatedly err. And the National Practitioner Data Bank records of doctors by name must be made public so consumers can protect themselves from bad doctors.

We must do everything feasible to ensure that more innocent people are not needlessly harmed for life. Capping damages is not the way to accomplish that.