How many times in recent years have we heard the call for tort reform, particularly from our physician colleagues?

How many times have we heard the Bush administration urge Congress and the states to pass laws designed to limit the awards to plaintiffs in medical malpractice suits in the name of moderating the insurance premiums for medical practices?

How many times have we heard medical organizations such as the American Medical Association claim that greedy attorneys, frivolous lawsuits and malpractice insurance premiums are forcing doctors out of various specialties, leading to inadequate health care delivery?

Are these claims of concern? And is the need for reform of the medical malpractice system real, or, as is asserted in a new book on the subject, simply based on myths that are usefully perpetuated by biased partisans in government, the insurance industry and medical groups?

Blowing Up Malpractice Myths

The Medical Malpractice Myth intends to address and ultimately dispel what are described as the myths that surround medical malpractice and the tort resolution system.¹ The myths are the familiar litany that we have heard most recently from the president in his exhortations in support of tort reform: the frivolous lawsuits, the courts' bias against doctors, the skyrocketing jury awards, the exorbitant settlements in cases in which the physician did nothing wrong, the direct link between lawsuits and insurance premiums, the doctors leaving the practice of medicine, the patients who cannot find physicians and the huge waste of money on defensive medicine.

Far from a screed, this carefully balanced examination, written by University of Connecticut law professor Tom Baker, takes a dispassionate and sanguine view of the issue of medical malpractice and tort reform. He sees the latter as a time-honored political mantra that is trotted out mostly by Republicans who oppose the trial lawyers and that on its face seems to support a populist notion: Limit malpractice awards, and the result will be affordable health care and fair recompense for physician practices. Unfortunately, there is little connection in reality between the tenets of tort reform and the attainment of these goals.

The myth that Baker most clearly explodes is the commonly held belief of would-be reformers that the current tort system is responsible for the crisis in insurance. He traces the cyclical economics of the insurance industry and shows how tort reform would have little impact on malpractice insurance premiums. He explains why there is little connection between the rates or amounts of medical malpractice awards and insurance premiums, noting that the combination of the bursting of the stock market bubble in 2001, a downturn in interest rates at about the same time, and the September 11 attacks all led insurance companies to be at the bottom of the cycle at that time, and that premiums rose steeply thereafter, not only in the medical malpractice area but also in the entire property and casualty insurance business.

In the overall picture of health policy, medical malpractice is small potatoes, costing less than 1% of total U.S. health care costs. He points out that the automobile liability and workers' compensation businesses comprise much higher amounts, and that premium rates in these areas are proportionately higher than the premiums paid by physicians.

The Capping Canard

A favorite of the tort reform adherents is the idea of capping malpractice awards, and this notion has found some degree of legislative acceptance. Caps exist in 16 states and have been in place in California since 1975. Typically, such laws limit awards at between $250,000 to $500,000 that a plaintiff may receive for pain and suffering.

However, no conclusive evidence shows that caps save much money. One study of verdicts in 22 states concluded that caps have no effect on the size of the overall compensation awarded by juries, and that what instead seemed to influence outcomes were the severity of injury, the requirement for medical expert screening of cases and the election experiences of the judge.²

Baker also shares convincing data showing that there is no such thing as an "epidemic" of medical malpractice. Rates of serious injury and malpractice suits have not gone up steeply in the past 10 years; there are between six and 25 serious injuries from medical malpractice for every one lawsuit filed. He notes that in the states for which there is the best recent information (Texas, Florida and Mississippi), the rate of claims has been steady or has even declined in relation to population and economic growth over the last 15 years.

The Tort Reform Rerun

For those with a long involvement health policy, the harangues of the tort reformers read like just another return of the same tired script. One insightful observer described the dance of tort reform this way:

"When physicians get together, the discussion frequently turns to medical malpractice. Those participating in such conversations typically hear (and volunteer) a mix of fact, fiction, and urban legends. When plaintiffs' lawyers get together, a similar colloquy unfolds-albeit one in which doctors and malpractice insurers play the villains, and plaintiffs' lawyers the heroes. Lobbyists for physicians and trial lawyers will then descend on the legislature and vigorously advocate their respective positions. Campaign contributions will be made, op-eds will be published, and hearings will be held. Physicians will complain about the malpractice liability coverage crisis (i.e., that coverage is too expensive or simply unavailable at any price). Plaintiffs' lawyers will complain about a malpractice crisis (i.e., that physicians are routinely committing malpractice, and getting away with it). If the situation is perceived to be a crisis, legislation will be enacted. Otherwise the debate will die down, and the combatants will regroup to begin the process again at the next opportunity."³

This cycle has repeated itself in the early 1970s, the mid-1980s and again in the early 2000s. It is kept alive by the current administration and large medical organizations. To their credit, the PA profession and its leadership have been wise in lying low in the political discussions of tort reform, no doubt waiting for the latest frenzied cycle to pass.

James F. Cawley is director of the PA/MPH program and professor and vice chair of the Department of Prevention and Community Health, School of Public Health and Health Services at The George Washington University in Washington. He also is professor of health care sciences at the university's School of Medicine and Health Science.