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Medical Malpractice Reform: Rationale and Reasons
With medical malpractice reforms being considered in several states, a review of the proposed reasons for reform is in order.
- Money. States don't have it, and they are looking for ways to save it. One of the big-ticket items in most state budgets is Medicaid reimbursement to health care providers who treat low-income patients. New York's proposed solution to this is to cut Medicaid reimbursements to doctors and hospitals. In exchange for lower Medicaid payments, the plan is to pass legislation that caps pain and suffering awards in medical malpractice cases at $250,000, regardless of the severity of the patient's injuries.
- Doctors are so afraid of lawsuits that they order unnecessary tests, which drive up the cost of medical care. This is called "defensive medicine." The theory is that if the doctors are not afraid of malpractice cases, they will not order so many tests and medical costs will come down.
- The huge number of malpractice cases overburdens courts. The reason does not seem to be supported by any figures. According to the National Center for State Courts, medical malpractice claims from 1999 to 2008 dropped by almost 15 percent.
- Medical malpractice insurance rates are too high. This makes it too expensive for doctors to practice medicine. Doctors pass this cost on to patients, which drives up the cost of medical care, or stop practicing, which results in a shortage of doctors. Yet medical malpractice insurance rates are affected by factors other than the amount of malpractice claims paid. California is presently investigating why malpractice insurers are charging high premiums when records show that they have paid out only 23 percent of the premiums they collected as claims. Texas enacted medical malpractice reforms in 2003, yet a doctor shortage still exists, according to the Star Telegram. Apparently there are plenty of medical students, but not enough openings at hospitals. According to the Star Telegram, there are fewer openings because of state cuts in Medicaid payments to hospitals.
There is no doubt that states have budget problems and that medical malpractice insurance is too expensive. The question to be resolved is if either of these problems can be solved by taking malpractice cases from juries, despite the right to a jury trial offered by the federal and state constitutions.