Debate emerges over tort reform

Obstetrics at the Yale School of Medicine is in big trouble, and it is not alone.

Reflecting a national trend, the school’s Department of Obstetrics, Gynecology and Reproductive Sciences is one of Yale’s departments most hard-hit by rising costs of medical malpractice insurance. Over the last three years, the department’s liability premiums have more than doubled, from less than $40,000 in 2002 to $90,000 in the coming fiscal year. Statewide, medical malpractice insurance costs have risen 65 percent in the last fiscal year.

But federal medical malpractice reform may follow on the heels of a measure limiting class-action lawsuits passed by the Senate last Thursday. Such tort reform could cap punitive damages and limit the number of cases brought to court, saving obstetrics and other medical fields from budget or staff cuts, but critics warn that proposed laws could jeopardize patients’ abilities to seek redress after a medical mishap.

Charles Lockwood, chair of the Ob/Gyn department, said rising insurance premiums, resulting from the field’s high legal risk, have already forced large cutbacks in Yale’s maternal fetal medicine staff. He said premiums are expected to increase 30 percent each year over the next three years, which could force the department to eliminate vital programs.

“Within two years we will be faced with a very real possibility of having to shut down our high-risk obstetrical practice — a practice which cares for the sickest mothers in the state,” Lockwood said.

But, he said, proposed federal tort reform would reduce the department’s insurance rates by 10 percent within three years.

“Coupled with immediate state reform, we might be able to preserve our high-risk practice,” Lockwood said.

On the other side of the debate, New Haven personal injury attorney Howard Jacobs said tort reform advocates exaggerate the frivolity of malpractice lawsuits. He said lawyers are selective in accepting cases because malpractice suits are costly, time-consuming and often only succeed if a victim has serious injuries.

Jacobs said insurance companies shoulder some of the blame for high premiums, and it would be unjust to put caps on damages recovered by malpractice victims.

“If you have a brain-damaged child because of malpractice, you should be receiving compensation for more than just the costs of care over a lifetime,” he said. “You’re talking about the loss of ability to enjoy life. Tort reform and caps on recoveries would hurt the victims of malpractice. It is essential for our system of justice that they get fair compensation for substantial injuries … The medical community is not policing its own profession.”

But Yale School of Medicine Dean Robert Alpern said tort reform is needed to protect medical schools and doctors of all types.

“There is no question that medical malpractice occurs, and the medical profession supports patients’ rights to address this problem when they’ve experienced malpractice,” Alpern said. “But the current legal system is very poor. Lawsuits are often filed in situations where no malpractice has occurred, but a patient has a bad and unpreventable medical outcome. Even when a doctor has done everything right, a court will find a guilty plaintiff, and the sizes of awards can be outrageous.”

Alpern said the threat of lawsuits deters new doctors from practicing high-risk medicine and working in states with little to no tort reform, but Law School professor George Priest said quick fixes, such as capping damages, are second-rate solutions to wider problems in tort law.

“I have never liked caps on damages, but on the other hand it is very difficult to control the substantive grounds on which people recover,” he said.

Law professor Theodore Marmor said caps are not the best means of fixing the tort system’s troubles because they do not address the heart of the issue — the exorbitant scale of damages.

“The mass tort area is beset by problems, and caps address some of the problems, but are neither a panacea nor are they to be thought of as the most important single action to engage in,” he said.

But Lockwood said some type of reform is necessary because the high number of malpractice suits concerning unpreventable health problems is damaging medical care quality. He said there have recently been large declines in applicants to Ob/Gyn residencies nationwide, and obstetrics programs are forced to be less selective.

He said obstetricians pay among the highest damages because a newborn’s lifetime care must cover about 80 years. Juries are often not informed about other income sources available to a plaintiff, such as health care or disability insurance, and demand greater compensation than necessary from a physician, he said.

“Because juries often react at a visceral level to the sight of a damaged child, the punitive and non-economic damages are equally staggering,” Lockwood said. “These costs account for roughly 30 percent of all malpractice awards and settlements. The irony is that most of these cases are not preventable.”

Earlier this month, Connecticut Gov. M. Jodi Rell announced a series of malpractice reform proposals that could establish an agreeable middle ground between the interests of both doctors and victims of malpractice. As part of her state budget plan proposal, Rell included provisions to spread payment of large remunerations over time and prevent insurance companies from setting rates higher than necessary.

On the president’s national agenda, malpractice reform is closely linked to general class-action law revision, which has been met with mixed opinions.

Critics of the new federal bill say it could hurt the public, particularly victims of injury. The bill would move large suits involving plaintiffs in different states to federal jurisdiction, where judges have tended to favor businesses.

Philip Schrag LAW ’67, a law professor at Georgetown University who previously served as New York City’s consumer advocate, said the bill’s passage — which will not affect pending cases — could prevent many class-action suits from ever being heard because there are many fewer federal than state judges, and federal dockets are often full.

He said cases must meet stricter requirements to be tried as class-action suits in federal courts.

“Consumers, subjects of discrimination, and victims of mass torts that cause small injuries to many people will all be the losers because they may not be able to obtain effective redress anywhere,” Schrag said. “Also, laws against consumer fraud, environmental pollution and discrimination may have less deterrent effect because corporations will be less concerned about the substantial damages that can be awarded in class actions.”

But Marmor said he thinks moving tort cases to federal court is an especially positive move.

“I am much more keen on sending [these types of cases] to the federal courts,” he said. “I do not think that the state courts are the place to do mass torts.”

Some professors at the law school said the class-action reform would not have much effect on the legal system, and plaintiffs can dodge the bill’s restrictions by breaking up multi-state class-action suits and filing separately in different states.

“The only context in which this measure will have an effect … will [be in the case of] a nation-wide class-action suit — it does not stop state class-action suits,” Priest said.

In terms of the president’s broad push for tort reform, physicians said they are hopeful that major changes will be promptly enacted, but law professors said any immediate action is unlikely.

Comments