Medical Malpractice Reform

As the healthcare debate rages nationally, the Illinois Supreme Court, conveniently just after the February 2 primary, sided with plaintiffs’ attorneys and against doctors and patients when they ruled that the state’s 2005 medical malpractice reform law was unconstitutional.

The Court opined that the law’s cap on non-economic damage awards (a.k.a “pain and suffering,” which are subjective lawsuit awards added onto awards for actual medical expenses or lost wages) in medical malpractice lawsuits violated the state constitution.

A copy of the Court’s decision (in Lebron v Gottlieb Memorial) can be found at the following link: http://www.state.il.us/court/Opinions/SupremeCourt/2010/February/105741.pdf

Prior to Illinois’ landmark reform law, the state’s medical liability system was in crisis, with no neurosurgeons south of Springfield, OB/GYN’s and other high-risk specialty doctors fleeing the state for fear of lawsuits and ever increasing medical malpractice insurance premiums.

Such reform laws work. In just two years after the reform law passed in Illinois, nearly 5,000 more doctors were licensed in the state, three new malpractice insurers began operating and malpractice rates from some insurers dropped anywhere from five to 30 percent.

In fact, the 2005 reform law is an excellent example of when the General Assembly works best: thoughtful, serious debate; a consideration of all key stakeholder opinions; and bipartisan passage of a bill that effectively solves a critical public policy issue (for the record, my general election opponent sided with trial lawyers and voted against the reform law).

Other states have seen similar success with comparable reforms, such as Ohio. Their 2003 law, which capped non-economic damage awards at $350,000 per plaintiff (with higher limits for catastrophic cases) has, according to the state’s Department of Insurance as summarized in a recent Columbus Dispatch editorial, caused the number of closed malpractice claims per year to fall 40 percent from 2005 to 2008 and “[B]ecause of the drop in claims, malpractice-insurance premiums have decreased by 22 percent over the past four years, and the number of companies offering malpractice insurance to doctors has increased from just a few to more than 15.” Ohio also has a requirement called an “affidavit of merit” to weed out baseless lawsuits. Find the full editorial via the following link (free registration may be required): http://www.dispatch.com/live/content/editorials/index_7.html

Unfortunately, we’re all human and errors, including medical errors, will occur in life. Nothing can take the pain away for families that suffer at the hands of a medical error, but there is a difference between an error due to malice, negligence or incompetence and a bad outcome in medicine.

A simple, proven, method to help contain our exploding healthcare costs would be to enact reasonable caps on non-economic damages. Additional measures I would support include strong deterrents for filing frivolous lawsuits (such as independent medical review of claims); medical malpractice specific courts, even on a pilot basis, given the complexities of some cases; and tougher disciplinary measures for doctors found to be grossly negligent, including stripping them of their license for repeat occurrences.

So, now it is ‘back to the drawing board’ for Illinois and likely a return to a crisis state when patients were threatened by a shortage of doctors and reduced availability of care.