In 2003, a Republican led Pennsylvania legislature made "sweeping changes" to the state tort system designed to curtail the "medical malpractice crisis" plaguing the Commonwealth. Statistics were altered and medical lobbyists sold their snake oil by scaring citizens into believing that physicians were fleeing the state and that health care would soon be unavailable to the general public if immediate changes were not made. The culprit, according to them, - out of control medical malpractice lawsuits. Of course, the medical society advocates never mentioned how the stock market crisis had cost medical insurers millions of dollars thereby requiring huge premium increases. Instead, panic was created and citizens were stripped of rights long guaranteed to them by the State Constitution to have a jury of peers decide the true value of a case. Most disturbingly, many citizens happily supported the "reform." So what has changed in ten years?
I spend a lot of time at cocktail parties and gatherings of friends biting my tongue. I argue with people for a living so I honestly don't care to argue with friends during times when I am to be relaxing. So, when discussions of the need for tort reform, caps on money damages, and frivolous lawsuits invade the conversation I slip away to a neutral corner. I do, however, feel obligated to provide the truth to my "educated" friends and colleagues. What better place than here?
Proponents of reforming the system for litigating medical malpractice case constantly harp about "frivolous lawsuits." Physicians and the insurance industry would like the public to believe that very few of the medical malpractice cases filed are, in fact, meritorious. This myth lives in Pennsylvania because many victims of medical negligence cannot discuss their cases. Why? Because most meritorious medical malpractices are settled rather than tried and victims who settle their lawsuits and their lawyers must agree not to publicize anything about their cases, including the settlements.
Innocent people regularly suffer grievous injures because of the negligence of others. Those innocent victims can obtain compensation for their injuries by resort to our civil justice system. The civil justice system is all too often the only way to hold wrongdoers accountable for their actions. For some time, however, wrongdoers have used lobbyists and public relations campaigns in an attempt to limit an innocent victim's access to the courts by claiming that a "crisis" exists in the civil litigation system in general and with medical malpractice in particular. Compelling evidence shows that the claims of a "crisis" are simply not true.
The public debate over reforming the medical-malpractice legal system has long focused on extreme positions. Health-care providers and insurers call for a revamping of the entire system by capping damages and creating an administrative system of "health courts." Victims-rights advocates, including plaintiff's lawyers, argue that the present system works fine and no reform is necessary. It now appears that a middle ground may be emerging that can reduce litigation costs and permit a faster resolution of malpractice claims. How-by encouraging honesty by health care providers when unforeseen outcomes occur and making early settlement offers and apologizing when injuries are caused by medical negligence.
Physician groups and liability insurance companies continue to claim that that Pennsylvania's medical malpractice legal liability system is driving doctors out of the state. In spite of reforms enacted by both the Legislature and Supreme Court in 2002, these proponents of tort reform argue that more needs to be done to reduce medical malpractice insurance premiums to stop the "exodus" of doctors. However, a recent report commissioned and funded by the Pennsylvania Bar Association (PBA) reveals that many of the claims of tort reformers are simply untrue.
In February of 2005, legislation in Georgia went into effect that enacted sweeping medical malpractice reform severely limiting victims' rights. These reforms limited jury awards for pain and suffering to $350,000, required tougher standards for expert witnesses and included incentives for victims to settle their cases prior to trial. At the time the reforms were proposed, promises were made that enactment of the reforms would reduce malpractice insurance premiums for the state's doctors. A recent study by the Associated Press of state insurance records reveals those promises were empty, as six of the state's top medical malpractice insurers have increased their premiums, some by as much as 33%.
In spite of the United States Senate's recent rejection of proposed medical malpractice reform, Senators Rick Santorum and Bill Frist were recently in Scranton again urging such reform. The American Trial Lawyers Association, whose stated goals are promoting justice for injured persons, defending the right to jury trials, and strengthening the civil justice system by disclosing information critical to public health and safety, issued a statement accusing the two senators of hypocrisy and deception.
Proponents of reforming the medical malpractice litigation system often claim that reform is needed to curb frivolous lawsuits. The proponents of reform argue that frivolous lawsuits are the primary reason for high malpractice insurance rates, which are causing physicians to leave Pennsylvania. However, a study conducted by a number of health professionals and recently published in the prestigious New England Journal of Medicine suggests that such claims are greatly exaggerated.