The Medmal Crisis that Never Really Existed

In Florida, the Florida Medical Association and the medmal Insurance carriers teamed up to create a fake “crisis” in hopes of getting laws passed to help them avoid responsibility and increase profits. They created false stories of doctors “fleeing the state” and tried to scare the public about specialists “leaving the practice”. In reality, their own data shows both of these claims to be totally false. The number of physicians moving to Florida has drastically increased over the last several years.

A look at the U.S. government’s National Practitioner Databank reveals more detail about malpractice cases. Every payout (not the verdict amount but the actual amount paid) in a malpractice case has to be reported to the Databank. The most recent annual report shows that, nationwide, the median award is only $170,000. See Jay Angoff,Insuring Against the Next Insurance Crisis.

Are these trials the reasons for doctors’ skyrocketing insurance premiums? Research has repeatedly shown that they are not and that insurance companies are themselves responsible for the risky business practices that have forced them to raise premiums. Mark Silva, Bush’s Tort Reform Efforts to Start at “Judicial Hellhole,” CHICAGO TRIB., Jan. 3., 2005, at 9.

Several states that have enacted limits or ‘caps’ on medical malpractice damages have not seen a corresponding drop in premium rates. After medmal caps were passed in Florida doctors premiums did not go down but several medmal insurance carriers posted record profits of hundreds of millions of dollars.

When the FMA and their Insurance partners went before they legislature with stories of a “crisis” the Legislature made them testify under oath. Not surprisingly, this resulted in some very different statements. They admitted there were not a lot of “frivolous lawsuits”, they admitted caps might not affect premiums, and they admitted the recent premium increases were not due to claims pay-outs. Insurance company executives admitted openly that tort “reform” has nothing to do with premiums. In 2005, American Insurance Association spokesman Dennis Kelly told the Chicago Tribune, “We have not promised price reductions with tort reform.” Mark Silva, Bush’s Tort Reform Efforts to Start at “Judicial Hellhole,” CHICAGO TRIB., Jan. 3., 2005, at 9.

And Victor Schwartz, general counsel of the American Tort Reform Association, acknowledged that “it is very rare that frivolous suits are brought against doctors. They are too expensive to bring.”

Victor Schwartz knows something he does not want juries to know. He knows that frivolous suits are not brought against doctors because “they are too expensive to bring”. The typical medmal case costs a plaintiff’s lawyer over $50,000.00 in costs just to get to trial, sometimes a lot more. Since most doctors stick together and never testify openly against colleagues, injured patients are forced to bring in doctors from other states to testify candidly without fear of reprisals. There are even reported cases of Insurance Companies threatening doctors against testifying for a patient in court.

Because of the restrictive laws in Florida, juries are never told the doctors have insurance and are being defended by Insurance Company hired lawyers. They are also usually prevented from knowing about prior malpractice cases against the doctor, prior disciplinary actions, or even if the doctor has lost privileges at hospitals. Even though the voters of Florida overwhelmingly passed a law requiring hospitals to release this kind of data, many have refused to do so.

For all these reasons, very few lawyers even take medical malpractice cases. The ones who do are extremely selective and try to only take cases with clear-cut negligence and catastrophic injuries. The costs are simply too high and the risk of losing is great due to the restrictive laws and tough climate.