Medical Malpractice Caps in Ohio and Nevada Show Negative Effects of Tort Reform

Recent events in both Nevada and Ohio have called into question the logic of so-called "tort reform" to improve the current mess of the healthcare industry. While tort reform is touted by its proponents as a way to lower costs passed on by insurance companies to the average consumer, more and more evidence is revealing that limiting damage recovery for medical injuries with medical malpractice caps does little to no good in backing up these promises of lower costs.

In Ohio, the Lorain County Chronicle-Telegram reports that more and more obstetricians are being pushed out of business by soaring healthcare costs. Over the last five years, the number of licensed physicians specializing in obstetrics and gynecology decreased by 5 percent (1393 doctors in 2002 to 1327 doctors in 2007), despite the fact that the overall number of doctors rose from 28,000 to 30,000, or around 7 percent.

Ohio's medical malpractice cap, implemented five years ago, has proved to be ineffective in lowering premiums for doctors, as proponents promised. Obstetricians in particular feel the brunt of high premiums, paying on average $194,293 annually, or more than four times the amount of other internal medicine physicians.

In fact, if insurance premiums were lowered, as tort reform should theoretically accomplish over time, then the rate of obstetricians and gynecologists being squeezed out of practice wouldn't be so high.

A study by the non-profit group Americans for Insurance Reform shows that the premiums paid in Ohio are similar to those paid in other states across America, regardless of whether or not the state has enacted tort reform laws like Ohio. In other words, the caps are not fulfilling their purpose of lowering premiums effectively.

At the same time, medical malpractice caps continue to reveal their inflexibility in the case of a true widespread emergency. A Las Vegas, Nevada doctor was linked to a recent outbreak of Hepatitis C, occurring in six patients treated at the Endoscopy Center of Southern Nevada. After investigation, it was revealed that staff at the center reused syringes and single-use medication vials on multiple patients.

Further investigation at dozens of clinics across Nevada has revealed unsafe practices at many clinics. With so many people over the region put into unsafe hands with their personal injury, what can be expected if they decide to claim compensation for medical costs due to being injected with a contaminated, reused needle? Well, according to the Nevada emergency tort reform law, a limit of $350,000 for pain and suffering.

To put this case in perspective, there's no cure for Hepatitis C, and a 70% likelihood that those suffering from it will develop liver failure.

The dilemma that confronts policymakers and courts in considering medical malpractice caps is that, in the abstract, medical malpractice caps seem to offer protection to insurance companies (and by extension their policyholders) without treading on the rights of true victims of medical malpractice to receive compensation to pay for botched operations and the like. After all, they're still entitled to plenty of money, the story goes.

The problem, however, lies in underestimating both the effects of malpractice and the costs of medicine. In the event of a medical foul-up, the sheer number of unknowns involved makes anticipating the money needed to cover treatment of the error impossible. Injuries caused during medical procedures are often far more serious than those that are naturally occurring. Additionally, injuries sustained while the body is in a critically vulnerable state, as during a serious illness, surgery or pregnancy, to name just a few examples, often prove to be permanent or long-term.

Compounding this issue, medical costs have risen so greatly over the past ten years that malpractice settlements or verdicts often fall significantly short of covering the additional expenses resulting from a botched procedure. According to the U.S. Department of Health and Human Services, hospital costs, for example, have more than doubled, while patient discharges have remained steady.

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