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March 11, 2003
United States House of Representatives
Washington, D.C. 20515
Dear Representative:
Consumers Union urges you to oppose H.R. 5, the HEALTH Act of 2003, when it comes before the House this week.
We are very sympathetic to doctors facing premium increases, which are especially acute in certain states and in certain high-risk specialties. However, H.R. 5 does not address the true causes of these premium increases, and it instead shifts the burden to innocent victims by limiting their compensation for the very real injuries they suffer. This bill fails both victims and doctors, for the reasons described below.
· This legislation does not guarantee reduced medical malpractice premiums: While H.R. 5's stated purpose is to bring down medical malpractice rates for doctors, tort reform measures have been unsuccessful in keeping down rates in states like California, where non-economic damages have been capped since 1975. California doctors' premiums grew 3.5% from 1991-2000, compared to the national rate of 1.9%.
· The bill will have the most severe effects on the most vulnerable victims: In tort claims, victims such as children and the elderly who do not earn income do not qualify for economic damages. Therefore, these patients often rely more heavily on non-economic damages, which compensate victims and their families for non-tangible losses, such as the loss of a child or spouse, permanent paralysis, constant pain, or the loss of fertility.
· To a victim of serious medical malpractice, a damage award is not "hitting the lottery":
- Terry McBride lost her unborn baby and her fertility at the hands of a negligent doctor who had injured at least 25 women before her, but California's non-economic compensation cap restricted McBride to $250,000 for the loss of her child's life and her own sterilization, because she suffered no wage loss due to her injuries. The award was insufficient to cover the cost of a new procedure to restore her fertility.
- A 6-year-old California girl paralyzed by medical malpractice was restricted to $250,000 in compensation over her entire life because she could not prove future wage loss.
- Harry Jordan, also a California resident, underwent surgery to have a cancerous kidney removed, but the surgeon removed his healthy kidney instead. A jury awarded Jordan more than $5 million, but the judge was required to reduce the award to $250,000. Jordan, who lived with only 10% kidney function, could no longer work, and his court costs (not including attorney's fees) amounted to more than $400,000. His medical bills, which frequently arose after insurers refused to pay them, totaled more than $500,000.
· The "litigation explosion" is a myth; most medical malpractice victims do not sue: A 1991 Harvard study found that when medical malpractice causes serious injury, seven out of eight patients do not file lawsuits. To say that frivolous lawsuits are exploding is an exaggeration; lawyers will generally not take frivolous cases, since they do not get paid unless they win. According to the Physician Insurers Association of America, of those patients who do file suit, 61% of cases are dismissed or dropped; 32% are settled (with average payments of $300,000). Only 7% of the cases filed actually go to trial, and of that number, patients win in only one in five trials - about 1.3% of all claims.
· This legislation ignores the fact that a small percentage of doctors are repeat offenders: A recent analysis of the National Practitioner Data Bank, which covers malpractice judgments and settlements since September 1990, conducted by Public Citizen, found that about 5% of doctors in the U.S. are responsible for over half of the malpractice claims. A Vanderbilt University study found that doctors with multiple malpractice claims can be expected to have significantly worse claims experience in the future than other doctors. Despite this fact, neither licensing boards nor the insurance market has been effective in disciplining repeat offenders or reducing their record of malpractice.
Consumers Union supports efforts to address the true causes of the increases in medical malpractice premiums, in the form of increased discipline of the small number of physicians responsible for most malpractice claims, and further examination of insurance industry pricing practices. However, H.R. 5 is not a solution, and instead only punishes victims whose lives have been irreparably damaged by medical malpractice.
Sincerely,
| Sally
Greenberg Senior Product Safety Counsel Consumers Union Washington DC Office |
Ami
V. Gadhia Esther Peterson Fellow |
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