Feldman: Indiana leads in malpractice reform

By IndyStar Indiana, National, News Source

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  • October 24, 2016

When making the decision to apply to medical school, I told my father, a revered family doctor in South Bend for more than 40 years, that I had anxieties about becoming a doctor. He told me that doctors are human and like all human beings, physicians make mistakes. He was right. Even the best doctors make errors. Fortunately the vast majority are minor and correctable and do not result in harm.

Our society has become terribly litigious and medical liability in America is out of control. Not all suits are justified and based on true negligence. In many states across the country, medical malpractice premiums are skyrocketing beyond what physicians can realistically pay and still practice. Some insurance companies are refusing to write medical liability policies, and physicians are abandoning high-risk procedures or are leaving some states altogether to find more practice-friendly environments. In some highly litigious states without a malpractice-reform act, some medical specialties are hard to find.

The bottom line is that huge malpractice insurance premiums result in significant increases in the cost of health care and a serious decrease in access to medical care in many states. Lack of patient access to neurosurgeons, hospital trauma centers and obstetricians are good examples. The U.S. Department of Health and Human Services estimates that “defensive medicine” and unreasonable malpractice awards add up to $108 billion to the annual cost of health care.

Indiana was the national leader in medical malpractice reform. The 1975 landmark Indiana legislation — the first comprehensive malpractice act in the nation — served as the model for other states that followed. Because of our statute, we have no crisis in Indiana. Our medically underserved state preserves access to care and has provided reasonable compensation for those who are truly injured by malpractice.

Since 1975, the Indiana Malpractice Act cap has been increased twice before the increases just enacted in the 2016 legislative session. The last increase was 17 years ago, and this recent increase was overdue. Although there was agreement that increases were appropriate, the negotiations between the stakeholders including the Indiana State Medical Association, the Indiana Hospital Association and the Indiana Trial Lawyers Association broke down. Not until the 11th hour of the session was the legislation resurrected and a compromise reached.

The new legislation raises maximum total damages from $1.25 million ($250,000 from insurance and up to $1 million from the Patient Compensation Fund supported by provider-paid insurance premium surcharges) to $1.65 million in 2017 and to $1.8 million in 2019 ($500,000 from insurance and up to $1.3 million from the fund). The new statute also lowers maximum plaintiff’s attorney fees from about 40 percent to 32 percent. That’s a good thing: It places more money into the hands of injured patients.

The quality of medicine in Indiana is excellent, and the vast majority of physicians and other health care providers are competent, careful and responsible. But “to err is human,” and the Indiana Malpractice Act preserves the balance that exists between reasonable malpractice premiums, patient access to medical care and just compensation to those who are truly injured.

There have been many constitutional challenges to malpractice acts and Indiana has not been immune. Many believe that the cap increases will fortify the act against constitutional challenges by better assuring it remains equitable to patients harmed.

The changes enacted by the 2016 General Assembly are good and necessary ones, and will help assure that the act, an important safeguard to Hoosier health care, will continue into the future.