States Take Lead in Medical Malpractice Reform

Congress has been trying to fix the problem of runaway medical malpractice litigation for years.

President Bush made malpractice reform a campaign issue in both 2000 and 2004. But after a decade of hearings, bills and floor fights, Washington has yet to devise a cure for the problem.

But while Washington lawmakers are stymied, some states are making great strides in developing effective alternative medicines.

Texas, for example, recently enacted a comprehensive tort-reform measure that led malpractice insurers to reduce rates significantly. Among other things, the measure limits non-economic damages (e.g., cash awards for pain and suffering, mental anguish and other difficult-to-estimate damages) in medical malpractice cases.

Since the reforms took effect in 2004, Texas has gained more than 3,000 physicians, including such much-needed specialists as obstetricians and orthopedic surgeons. Other states, such as Georgia and Mississippi, once known as a “tort hell,” have followed suit with their own reform packages.

Research has shown that only 2 percent of injured patients ever file a lawsuit and only 17 percent of lawsuits involve actual physician negligence. Yet truly injured plaintiffs now wait five years or more to have their cases decided by a slow, cumbersome system. And the few plaintiffs who do manage to win must fork over most of their awards to pay lawyers, expert witnesses and courtroom fees.

And still doctors in some specialties are forced to make life-or-death, often-split-second decisions on which concerns about malpractice suits weigh all too heavily. For example, half of all neurosurgeons -- who specialize in operating on the brain, nerves and spinal cord -- are sued every year.

But medical malpractice reform shouldn’t come down to a clash between protecting patients’ rights and allowing good doctors to stay in practice. Many state reforms continue to focus on capping the amount that can be awarded to patients for damages caused by physician error or negligence, but that needn’t be the only prescription.

Innovative proposals such as special health courts, which use medically trained judges and court-appointed expert witnesses to better decide tough scientific questions, promise to make the system faster and fairer for both patients and doctors. Other alternatives include setting up procedural rules to encourage prompt settlement of malpractice cases and allowing patients to buy insurance before going in for a procedure, much the same way airline passengers can purchase trip insurance.

And the best way to solve the medical malpractice problem is for policymakers to promote the right kind of competition in health care -- competition that encourages health-care providers to improve quality and eliminate the medical mistakes that cause injuries. Consumer-driven options, such as health savings accounts and price transparency, could help.

Empowered consumers, armed with choice and accurate, understandable information, can patronize providers who do the best job and cut off those who underperform. The result? Fewer injuries, fewer lawsuits, and a safer, better health-care system for us all.

When it comes to addressing the medical malpractice crisis, some states have shown that they have the right medicine to achieve positive results. But more innovative thinking is needed at the state level to ensure that patients, rather than trial lawyers, come first.

Randolph W. Pate, JD, MPH, is a researcher in the Center for Health Policy Studies at The Heritage Foundation, a Washington-based public policy research institute.