As Donald Trump prepares to take office, top Republicans have turned their sights on what they are calling a medical malpractice crisis. According to them, frivolous lawsuits have driven malpractice insurance premiums to such high levels that physicians are being forced out of their profession. Representative Tom Price, a Republican from Georgia who has been selected by President-elect Donald Trump to become the Secretary of HHS commented at a news conference in June of 2016 that:
“We waste hundreds of billions of dollars due to lawsuit abuse in this country and the practice of defensive medicine.”
In reality, the actual figure spent on medical malpractice cases and “defensive medicine” – doctors ordering an increased number of potentially unnecessary tests – is just under $100 billion, a far cry from the figure cited by Price. In addition, researchers have found that even when stronger protections from lawsuits are implemented, it won’t necessarily alter the number of tests ordered by doctors or change their behavior.
On top of the inflated figures cited by Price, malpractice insurers are reporting that doctors are paying even less for malpractice insurance than they did at the turn of the millennium. According to the Doctors Company, one of the largest malpractice insurance companies in the nation, the cost for doctors is lower now than it was in 2001, and the rate of claims is half of what it was back in 2003.
“It’s a time of relative calm, and this hasn’t been a front-burner issue or crisis,” commented Rand Corp. researcher who focuses his studies on the civil justice system Nicholas Pace. “But now Republicans see an opportunity to make changes they have wanted for a long time as they replace Obamacare.”
One avenue Price and other lawmakers are proposing is an implementation of caps on the amount of money someone filing a lawsuit can recover through the courts. Over 30 states currently have some form of cap on malpractice suit damages, but researchers caution that there are a number of other factors the play an important role in keeping costs down. Stanford University law professor and health researcher Michelle Mello explained that proposals to create caps are only aimed at reducing liability for doctor’s, and do nothing to improve patient care and lessen adverse events.
Not only does this singular focus on caps for medical malpractice cases fail to address other factors that have caused insurance premiums to skyrocket, it could disproportionately affect women and the elderly, especially if caps are placed on noneconomic damages like pain and suffering. Because economic damages are calculated based on wages and wage earning potential, women and the elderly could be left without the financial resources they need to cover treatment or prepare for their futures. Mello explained that the minimal effects caps have on premiums “comes at a price of people being able to access the civil justice system.”
Under the current laws in Illinois, a jury decides whether and how much money to award someone based upon the specific facts and evidence presented at trial, without the restriction of arbitrary caps. Additionally, judges have the authority to reduce awards that are excessive or are not based upon the evidence presented. Imposing caps takes away the litigant’s ability to have a jury of their peers determine the reasonable value of his or her loss. Proponents of caps have not provided any legitimate reason to do away with this important aspect of our civil justice system.