Reconvening in Capitol chambers last week, Wisconsin legislators unveiled a plan to revamp the state's caps on pain and suffering awards for victims of medical malpractice. Led by the troubling tandem of Rep. John Gard and Sen. Dale Schultz, Republican lawmakers have made this initiative a legislative priority since July, when the Wisconsin Supreme Court determined that the previous cap of $445,775 was unconstitutional under the state's equal protection clause in Ferdon v. Wisconsin Patients Compensation Fund.
In an all-too familiar act of hypocrisy, state lawmakers have condemned the arbitrary nature in which juries determine liability rewards — and then proceeded to arbitrarily decide the maximum compensation all victims of medical negligence can receive in any given circumstance. Propped up by the campaign contributions of their insurance executive bedmates, our political leaders have merely constructed a "crisis" by deciding that a problem exists — with no systematic evidence to back up their claims. The truth is that Wisconsin remains a great place to practice medicine. Whether Messrs. Schultz and Gard and company's reasoning leans more towards ignorance or idiocy can be debated, but the indisputable facts reveal that this is a propagandistic endeavor whose foundations are seething with misinformation.
Legislative proponents claim that without caps, our state will experience a mass exodus of doctors due to rising medical malpractice premiums. Yet laws blocking injured consumers' access to court compensation have never — and will never — lower insurance rates for physicians. After President Bush pushed for federal malpractice caps during his 2003 tort reform campaign, a Florida-based company, Weiss Ratings, released a study revealing that limiting malpractice rewards do little to cut back doctors' insurance costs. In the 19 states that implemented caps during the 12-year period studied, doctors saw a staggering 48.2 percent jump in median malpractice premiums, while the 32 states without caps had a lesser increase of 35.9 percent.
Even with caps, Maryland had to endure a staggering 70 percent increase in malpractice premiums in the early 2000s. Though Missouri's caps resulted in record low malpractice claims and payouts from 2000-2003, doctors' malpractice premiums rose by 121 percent. Immediately after tort reform passed in Ohio, all five major medical malpractice insurance companies refused to reduce their rates. In the aftermath of tort reform in Oklahoma, the state's largest insurance company requested an astounding 83 percent hike in premiums. Four months after Mississippi passed their "caps," surgeons still could not afford malpractice insurance and many doctors were leaving their jobs in protest. After tort reform referendums passed in Texas and Nevada, major state insurers hiked up physicians' rates as high as 35 percent and 93 percent, respectively. The notion that the legal system is responsible for states' malpractice insurance crises is clearly preposterous.
The answer to lowering premium rates lies in insurance reform — not tort reform. In California, for thirteen years after caps were enacted in 1975, malpractice premiums skyrocketed by 450 percent, hitting an all time high. But in 1988, California voters passed a referendum implementing insurance regulatory law Proposition 103, which dropped premiums by 20 percent in the first three years, and 8 percent in the next 12 years while they went up 25 percent nationally. If lawmakers are so concerned about rising malpractice rates, they should propose to strip insurance companies of their anti-trust exemptions that allow price-fixing — not trying to deprive just compensation to victims of professional negligence.
So who benefits from malpractice caps? Doctors certainly haven't reveled in cheap insurance premiums. Nor have citizens enjoyed lower health care costs, considering that malpractice liability expenses account for less than one percent of total medical care expenditures. Yet in 2006, while our faithful state Legislature pushes for ineffective legal reforms, the medical malpractice insurance sector will become profitable for the first time in several years. Coincidence? Not likely.
For it's the insurance industry that controls the health care system — everything from clinic access to quality of treatment to doctors' salaries — and prove to be the main beneficiaries, along with HMO and pharmaceutical companies, of legislation limiting litigation rewards. Such is the reality of tort reform — that it only reduces the costs to typical payers of torts, the very corporate giants that civil litigation is meant to hold financially responsible for the damages they cause. Reducing the amount corporate entities must pay to victims of malpractice only furthers the injuries of those afflicted by negligence and professional error. For infants facing a full life of disadvantages or an elder facing a retirement of deprivation, non-economic damage rewards are their only hope. We should not be so eager to take justice out of the hands of common citizens meant to serve as the bearers of legitimacy in a court of law — juries — and entrust it to politicians who think they may be the sole determinants of what constitutes "fairness" for every victim.
Adam Lichtenheld ([email protected]) is a junior majoring in political science and African studies.
