ATRA Awards Medals for 'Best' and 'Worst' State Civil Justice Legislation
With most state legislatures now adjourned for 2009, ATRA has announced awards for what it deems both the best and worst pieces of civil justice legislation considered by state lawmakers across the country this year.
Champions of a comprehensive tort reform law in Oklahoma get ATRA's first annual "Gold Medal for the Best State Civil Justice Legislation," while the chief sponsor of a trial lawyer-driven expansion of securities liability in New York receives the "'Sheldon Silver' Medal for the Worst State Civil Justice Legislation." The "Silver" medal is named for Manhattan personal injury law firm partner and Assembly Speaker Sheldon Silver. For more details, read ATRA's news release, in which ATRA president Tiger Joyce suggests that "no single state lawmaker in the country has done more to increase the profits of personal injury lawyers at the expense of jobseekers, consumers, taxpayers and health care patients" than Sheldon Silver.
ATRA :: The American Tort Reform Association
Tort Reform is a single factor, like mandate is a single factor. They are in no way insignificant, and it is disingenuous to presume the effects are minute.
insurers with 50 percent or more of their business in malpractice insurance dropped 52.7 percent
from 2000 to 2002, from $4.5 million to $2.1 million, with investment yields dropping from 5.2 percent
to 4.3 percent (23). This drop looks large, and is often cited as a leading reason for increases
in insurance premiums. It is important, however, to remember that investment income is only a
small part of total insurer income (23).
How much do we spend on the malpractice system?
Much has been said in the policy debate about the toll that malpractice litigation
takes on the economy, but hard cost estimates are elusive. To calculate the total costs
of the malpractice system one would need reliable estimates of both the direct and the indirect
costs. The direct costs of malpractice litigation include payments made on claims (from which
plaintiff’s attorney fees and costs are taken), legal costs of defending claims and costs of underwriting
and administering liability insurance. A recent estimate suggests that claims costs amounted
to $4.4 billion in 2001, legal defense costs amounted to $1.4 billion and insurance administration
amounted to $700 million. Thus, total direct costs were probably about $6.5 billion in 2001, or 0.46
percent of total health care spending (2). These and all estimates of the costs of the malpractice
system, however, are back-of-the-envelope calculations; no hard cost figures are available.
Indirect costs arise when the liability system causes physicians to supply more health care
services than they would in the absence of a liability threat. Services that are provided primarily
or solely for the purposes of protecting physicians against malpractice liability, rather than the
medical benefit of the patient, are referred to as defensive medicine. True defensive-medicine
costs are properly counted as indirect costs of the malpractice system, but the costs of additional
appropriate (i.e., medically indicated) services should not be included in that estimate.
There are no reliable estimates of the national costs of defensive medicine. Many
analysts have attempted to estimate these costs; all have failed to do so reliably. All of the available
measurement methodologies have serious shortcomings (10, 18). For example, some national
estimates are based on the incremental cost increases associated with just two or three medical
procedures or diagnoses. It is simply not possible to extrapolate so widely to other procedures,
because some are more amenable to defensive medical practice than others. The Office of Technology
Assessment conducted a comprehensive review of the evidence about defensive medicine
costs in 1994 and concluded that none of available estimates were reliable (32). Much additional
research has been conducted since then, but the conclusion remains the same.
Malpractice litigation costs and total health care spending are related, but not
precisely. Because the cost of medical care for injured patients is a large component of malpractice
awards, we should expect awards to rise along with increases in health care spending.
Indeed, both average paid claims and per-capita health spending grew 52 percent in real terms
from 1991 and 2003 (14 and spending data from Centers on Medicare and Medicaid Services).
Malpractice awards also include other components, however, such as non-economic damages,
so we should not expect them to precisely track health care spending.
What is a medical malpractice “crisis”?
Stakeholder groups disagree about whether the current environment should be
labeled a “crisis,” but there is general agreement that malpractice insurance has
become less affordable and available. A malpractice crisis is a period of volatility in the
medical professional liability insurance market in which deterioration in insurance carriers’ financial
| RESEARCH SYNTHESIS REPORT NO. 8 | THE ROBERT WOOD JOHNSON FOUNDATION | Understanding medical malpractice insurance: A primer
How much do we spend on the malpractice system?
ratios is followed by higher-than-historical increases in insurance premiums and/or decreased
supply of insurance. The use of the word “crisis” is controversial because of the severity and
urgency it connotes, but the term is widely used in the academic scholarship as well as policy
debates. Further details about the current crisis period and previous crises are provided below.
When evaluating whether a state is experiencing a medical malpractice crisis, one should look at
both absolute levels of premiums (Figure 2) and the amount of change from year to year. It is also
important to juxtapose these costs with how generously providers are reimbursed in the state, as
reimbursement affects providers’ ability to meet rising insurance costs.
http://www.rwjf.org/pr/synthesis/reports_and_briefs/pdf/no10_primer.pdf