Waiting and Waiting for Malpractice Reform

December 29th, 2009 at 12:34 pm | 14 Comments |

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Exactly why didn’t the Illinois Supreme Court rule on the med malpractice case this month?

The legislation in question is undoubtedly controversial — but popular with docs and the public. It also stood a reasonable chance of being struck down by the court.

Let’s jump back to 2005.

“Illinois’ unbearable medical litigation crisis forced me to actively look outside of the state to practice medicine,” explained Dr. Andrew Roth, an obstetrician. “The signing of this legislation allows me to stay and take care of my patients.”

So observed Dr. Roth in 2005. At the time, state lawmakers passed sweeping medical malpractice reform.

Prior to the legislation, Illinois distinguished itself as being somewhat of a hot zone for malpractice litigation. Between 1998 and 2003, damage awards for pain and suffering in Cook County grew by 247%. For someone like Dr. Roth, moving to Wisconsin could see his med malpractice insurance premiums drop by up to $100,000 a year. Illinois hospitals, particularly in rural areas, had difficulty finding specialists in a host of areas.

The Medical Malpractice Reform Act capped non-economic damages at $500,000 against doctors and a million dollars against hospitals. Premiums fell and specialists like Dr. Roth stopped contemplating a move out of state.

Needless to say, the legislation had one great loser: trial lawyers. They argued (no agenda here, of course) that it undermines separation of powers.

In 1976 and in 1997, the State Assembly had actually passed similar legislation – only to see the caps struck down by the Supreme Court of Illinois.

Jump ahead to 2009, and it appeared likely that the Supreme Court would again hesitate on the caps, as a lower court had already done. Except, the court never ruled.

Why not?

In fairness, it’s not uncommon for the court to postpone a decision. But legal circles are abuzz with another theory: a phone call from the White House asking the justices to hold back on their decision.

It could all be just rumors, but anything that sounds corrupt in Illinois sounds, well, plausible.

If the White House is taking extra care to keep malpractice reform off the agenda, it’s with good cause. As much as the people in the administration like to trumpet their incredible achievement at passing health reform through the Senate on Christmas Eve, they still have much road to travel. The White House has already conceded that conference legislation is unlikely to be taken up before February. Plenty of time for plenty of problems, as I’ve noted before.

Medical malpractice reform is popular and needed – and, despite stretching for more than 2,000 pages, basically absent from Senator Reid’s bill (it proposes some future experiments with the concept). If there was an Illinois ruling showing that states can’t do this on their own, members of Congress could revisit this topic in the new year when they take up health reform again. Except there was no decision.

Getting malpractice reform off the agenda – or, at least, keeping it off the news cycle — seems pretty politically smart.

And even its harshest critics would concede that this White House is pretty politically smart.

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14 Comments so far ↓

  • PracticalGirl

    “Medical malpractice reform is popular and needed – and, despite stretching for more than 2,000 pages, basically absent from Senator Reid’s bill ”

    Good. This is a side issue, at best, and one that is mostly advanced/decried by powerful lobby interests.

    Medical malpractice (tort) reform has been enacted in many states, and while it did cause a massive (41% average), immediate drop in malpractice insurance policy costs, there is no corresponding evidence that it leads to any drop in consumer costs either at the provider level or health insurance. In fact, in Texas and Mississippi and other states, health insurance policy costs continued to rise at least 7 times faster than income. Compare that to a state like Oregon, with no such tort “reform” on the books, which saw a rise in insurance policies that was 4 times greater than income growth and you’ll see why this is such a non-issue.

    Conservatives cannot seem to help themselves from “helping” a powerful lobby that represents well-off, educated professionals. But it’s a dead stick, as it has been proven to contribute nothing to cost containment unless you are a doctor who now can operate more cheaply and have more protection from your life-threatening or life-ending screw ups.

  • WillyP

    “Compare that to a state like Oregon, with no such tort “reform” on the books, which saw a rise in insurance policies that was 4 times greater than income growth and you’ll see why this is such a non-issue.”

    Oregon?! No! But they have state health plan!

  • PracticalGirl

    WillyP, once again chiming in with complete ignorance.

    It’s company-provided and private health insurance rates that I was comparing (apples to apples). The OHP is the stat’s Medicaid plan, open only to a small number of low income folks…

    Do your research once in a while, Willy. It will make you appear less dense.

  • WillyP

    maybe I like appearing dense?
    of course I know that. i was aware of that when i posted. sometimes it is more amusing being a hack than being pedantic.

    however, there is a point to be learned. what is one of the grand arguments we hear from the administration? that the “injection” of “competition” from the public option will keep down the price of private insurance because they’ll be forced to compete with a relatively modest priced public option. how many times have we heard this?

    and there’s oregon, which pioneered a state run plan, with premiums rising “4x faster than income.” this was not supposed to happen, remember?

    what happened?

  • WillyP

    oh, and as for the “cost containment” we always here about in public options, here’s a sampling from oregon’s experience (from wikipedia):

    “The plan’s costs increased from $1.33 billion in 1993-1995 to $2.36 billion in 1999-2001.[1] Significant cuts were made to the Oregon Health Plan’s budget in 2003.[5]”

    Big cost increases, resulting in underfunding, resulting in cuts. This is one state. What happens when is the entire nation?

    As for the residents of Oregon:
    “New enrollment in the program were closed from mid-2004 until early 2008, when a lottery-based system was introduced. Tens of thousands of Oregonians signed up, competing for 3,000 new spots in the plan.”

    There – the refusal of new applications for 3.5 years. If a small state like Oregon can’t make their plan work, how does anyone in their right mind think that the U.S.A is going to design and implement an effective utopia for over 300 million?

    You advocates are nuts.

  • PracticalGirl


    You seem to be completely unable to read and comprehend. The OHP simply was NOT designed to compete with private insurers as a “public option”. Let me say it sllllooooowwwwlllyyy for you.

    The OHP is for LOW income people only. It is Oregon’s State Medicaid Plan. It is extremely restrictive in who it CAN take.

    Your original point about Oregon having a state plan was a complete non sequitor to the topic at hand. If you can stretch your brain a bit, it was about tort reform. It has been PROVED that it does nothing to lower consumer costs of either care or insurance and only satisfies a relatively small number of high income professionals.

    If you care to speak to the issue, then do it. But acting like a child and changing the subject (to one you are even more ignorant on) isn’t the way to do this.

  • Superdave12

    You’re advocating federal legislation over state tort law? Wow.

    This is an issue that should be resolved among the states. I agree with many of your points, particularly the difficulty of hospitals in rural areas to hire specialists, but very much disagree with the notion that an entire field of state-common law should be preempted by Congress.

  • WillyP

    i think i’ll continue acting like a child.
    “It has been PROVED that it does nothing to lower consumer costs of either care or insurance and only satisfies a relatively small number of high income professionals.”

    And what do frivolous lawsuits do? Satisfy a VERY small number of high income professional lawyers, you think?

  • txanne

    If the republicans consider tort reform to be a major issue, and a federal one at that, why didn’t they get it done when they were in total control from 2000-2006?

  • aDude

    Actually, if you are a good Federalist, you will believe that this is an issue that should be solved at the state level (where, as indicated, many states have enacted tort reform). Otherwise you are saying that the Federal government should tell state judiciaries how to operate, and that clearly violates the concept of Federalism. Liberals aren’t real fond of Federalism, so they don’t feel constrained when it comes to violating the division between state powers and Federal powers. But Conservatives should not cross that line.

    Most of the data I’ve seen shows that, at best (worst), malpractice claims, trials, and defensive medicine related to malpractice represents around 1% to 2% of overall medical costs. Obviously it is a significant cost for some specialties, and a negligible cost for others.

  • Healthcare Update Part 2

    [...] The Illinois Supreme Court delayed a decision on medical malpractice reforms enacted in that state. Was it because of a call from the White House? [...]

  • Health Care Update Part 2

    [...] “The Illinois Supreme Court delayed a decision on medical malpractice reforms enacted in that state. Was it because of a call from the White House? [...]

  • LenM

    I was thinking of the recently passed health care bill and the fact that medical malpractice insurance reform was not included will hinder any possible good this will do for our current health care situation. I do think that with the boomers retiring, and the fact that a lot of them are unhealthy….this is going to lead to a potential shortage of doctors to treat the sick. We already see doctor shortages in areas where the average age is 55+.

    High population areas, such as Chicago (Cook County), is one of the worst places to practice. I’m concerned that as the need for physicians rise, they will all be running for the borders to find a place to practice….if other states can actually follow Texas, without the courts intervening and implement Tort Reform. Will the lack of med-mal insurance reform cause doctors to leave? I guess time will tell…..

    I found this site that shows the average medical malpractice insurance rates for a doctor in each state. It’s crazy to see what surgeons and OB/GYN’s pay in Chicago!