21 reasons why we need tort reform now: The case for states

The number of states in a medical liability crisis is spreading -- and will continue to spread -- unless lawmakers pass meaningful reforms.

Posted March 20, 2006.

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Tennessee in February became the 21st state to earn the dubious distinction of being added to the American Medical Association's list of states in the throes of a medical liability insurance crisis.

It means that an out-of-control insurance climate is forcing doctors in the Volunteer State to practice what has become known as the three R's: restricting services, retiring early and relocating.

Frighteningly enough, the AMA's list has nearly doubled since its inception in 2002, when just 12 states were in crisis. One other scary change in the list: Originally eight states were OK because they had good reforms, namely reasonable caps on how much juries could award in noneconomic damages. Today, just six states make that list. And that number could shrink even further because it's unclear whether the liability climate in one state, Wisconsin, will remain OK because the Supreme Court there tossed out a cap on noneconomic damages in 2005.

The growing list of states in crisis translates to one thing: Patients who live in those states -- and those traveling through them -- are losing access to care, especially to ob-gyns and those who provide care in emergency situations. Just take a look at what's going on in Tennessee's 95 counties:

  • 85% don't have a residing neurosurgeon in patient care.
  • 52% don't have a residing orthopedic surgeon in patient care.
  • 49% don't have a residing emergency physician in patient care.
  • 44% don't have a residing obstetrician-gynecologist in patient care.

The broken medical liability system is to blame for this patient lack of access to care. Between 1995 and 2005, Tennessee physicians saw liability premium increases as high as 127% to 212%. At the same time, reimbursements from TennCare, the state's health care program, dwindled so that they now average only 25% of billed charges. No business can stay open if expenses outpace revenue and reimbursement. Physician practices aren't immune. They need to pay employees and bills, just as any other business does.

Unless there's an end to the frivolous lawsuits and runaway jury awards, the future for patient access to care is bleak.

These types of statistics are playing out in the other 20 states on the AMA's crisis list. Another 22 states, plus Washington D.C., and Guam, are showing signs of crisis.

In a bright spot that crisis states and those showing signs of a crisis can learn from, Texas pulled itself off of the crisis list and into a special category called "effective reforms halting crisis." That happened after Texas passed sweeping tort reforms, including a cap on noneconomic damages. Voters then passed a constitutional amendment to head-off any court challenges to the cap.

Since the reforms, access to care has increased in Texas. Lawsuit claims are down. Physician recruitment and retention are up, especially in high-risk specialties. New insurers have entered the Texas medical liability market, creating more choices for physicians, and in turn more choices for patients.

Other state legislatures, including Tennessee's, need to follow the lead of Texas, California and others that have passed effective reforms. And Congress needs to heed the recent call in New Hampshire of Senate Majority Leader Bill Frist, MD (R, Tenn.), to "reel in those predatory trial lawyers and pass meaningful medical malpractice reform!"

Without it, the crisis state list could nearly double again -- leaving many more American patients without access to the care they need.

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External links

American Medical Association's medical liability crisis map (link)

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