Only the Facts Will Get to the Bottom of Medical Reform

The battle to change the civil justice system never ceases to amaze me.

It twists and turns on several fronts – with rank-and-file doctors unaware of what is being done on their behalf in Springfield, with lobbyists in the nation’s capital motivated more by justifying their jobs than by reason, with insurance companies raking in unprecedented profits while answering nary a question.

As talk heats up on Capitol Hill and in Springfield, it is more important than ever to get out the facts regarding malpractice cases. The facts will lead us to meaningful compromise far more assuredly than political sleight of hand. It’s time to shed light on some of the numbers.

So-called tort reformers want it both ways. They complain of big verdicts that skew the system and account for increased premiums, yet they push for confidentiality agreements when large cases are settled for far less. Shame on the defendants for misleading the public to believe these verdicts are being paid out at face value, but double shame on the plaintiff who agree to the confidentiality agreements. They are selfish and undermine the civil justice system.

Certainly there is something to be said for eliminating delays in appeals, but plaintiffs need to insist upon openness. It is imperative that the real settled values be made known to the public, to policymakers and to opinion makers. Without openness of these records, insurers use the inflated jury figures as benchmarks in setting rates and putting away reserves.

That is why it is necessary to open the books of insurance companies, which enjoy exemption from antitrust status and strict administrative overview by a government agency. Their bottom lines indicate fattened profits, yet they are allowed to charge hefty premium hikes to physicians who have never even been sued, without any explanation or justification.

The latest figures from the U.S. Department of Justice, the Government Accountability Office, the Congressional Budget Office and the National Practitioners Data Bank indicate the figures remain stable:

    * Malpractice costs account for less than 2 percent of the total amount of health care spending in this country;
    * Regarding "frivolous lawsuits," 57 percent of claims filed involve permanent injury and 33 percent involve the deaths of patients. A report released in November by the American Bar Association concluded there is no correlation between increases in malpractice premiums paid by doctors and so-called frivolous lawsuits;
    * Jury verdicts account for a mere 4 percent of the medical malpractice payments;
    * Plaintiffs win about 27 percent of the time in large counties in malpractice cases. For example, Atlanta-based MAG Mutual Insurance Company, one of the largest physician-owned malpractice insurers in the Southeast, boasted of winning 84 percent of the time at trial last year.

Closer to home, the Illinois State Medical Insurance Exchange, the largest medical malpractice insurance company in the state, recorded a total profit of $25.1 million from 1995 to 2002. After raising doctors’ premiums 35 percent, ISMIE’s profit was $19.8 million in 2003.

It’s interesting to note that the Republican Party, the party of the tort reformers, is inviting donors to spend the inaugural weekend with President Bush at a cost of $250,000. That means the party advocating liability caps is spending the same amount of money for a weekend of frolic as it is for a lifetime of pain and suffering for someone negligently hurt at the hands of another.

Gov. Rod Blagojevich has appointed a highly respected mediator, Former Chief Judge of the cook County Circuit Court Donald P. O’Connell, to work with all of the parties to reach some agreement on this multi-faceted issue. The result could be put before Illinois legislators, who can be assured that all angles of the issue were thoroughly examined.

But for Judge O’Connell and others to reach a compromise, a look at the books of the insurance companies is required. That doesn’t mean just their premium intake and payouts. It means looking at their executives’ salaries, bonuses and perks; looking at how they reach and use their actuarial figures to set rates; and to allow other insurers to compare and see if it is worthwhile to enter this insurance market. Doesn’t healthy competition make for better business in a free market?

The number of physicians in Illinois has grown 30 percent over the last 10 years. But if specialists are dwindling and coverage areas are diminishing downstate, it isn’t because of malpractice lawsuits filed against negligent doctors. Every doctor I have spoken to admits the profession needs to better police its members. But only when such policing is linked to lowering insurance premiums do doctors start listening seriously.

Examining the jury process is a smokescreen. Hiding verdicts is deceptive. We need to get to the meat of the matter, and only through openness and honesty will we figure out what is really happening here.