State malpractice judgments at 10 year low


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  • August 30, 2012

The number of Oklahoma malpractice judgments has come down sharply in the past two years and is at the lowest level of the decade, according to federal statistics. “It appears to me lawsuit reform is already delivering what it promised,” said Secretary of State Glenn Coffee, who as a state senator was one of the leaders of efforts to control rising medical costs by restraining malpractice suits. “I believe these positive signs will grow with time. This news will certainly help Oklahoma retain and recruit physicians.” Tort-reform opponents agree that the new legal environment is influencing the way attorneys do business but say that’s not a good thing. “Innocent people are being hurt by a law that was put in to help insurance companies using doctors as the bait and lawyers as the scapegoats,” said Rep. Richard Morrissette, D-Oklahoma City. As a result, medically mangled Oklahomans are being barred from justice, said Morrissette, an attorney and a strident opponent of tort reform. Figures from the National Practitioner Data Bank – a congressionally established repository of malpractice records – show 114 malpractice payment reports in the state in 2011, down 28 percent from the level for 2009, the year Oklahoma lawmakers passed what was described at the time as a landmark lawsuit-reform law. In 2009, Gov. Brad Henry signed a compromise tort-reform law that made it easier for a judge to dismiss a lawsuit that has no merit before trial, limited plaintiffs’ ability to recover damages from “deep pocket” defendants with only limited responsibility, required a certificate of merit for injured people who want to file malpractice suits and capped noneconomic damages, also known as pain and suffering. The noneconomic damages limit never went into effect because it was contingent on a state indemnity fund for noneconomic damages in excess of the limit. The indemnity fund was never created. But last year, the Legislature again enacted damage limitations. While tort-reform details have come and gone with legislation and court rulings, the overall effect has chilled the willingness of attorneys to take malpractice cases, especially cases with relatively low potential awards, said attorney Ted Sherwood Sr. Attorneys now routinely won’t file cases without expert witnesses ready to testify, and because of the high expenses involved, that means they generally won’t consider cases where the damages aren’t likely to be relatively high, he said. Meanwhile, doctors are pushing their insurance companies not to settle cases, fearing the record it will create, he said. If every case has to be litigated, attorneys are even less willing to take low-potential cases, said Sherwood. “It’s just a matter of economics,” he said. Dr. Carl Hook, president and CEO of PLICO, which provides 40 to 45 percent of the malpractice insurance coverage in the state, said he is dubious about the federal database’s ability to capture all malpractice cases, but he said the numbers correspond with his company’s experience. “I can tell you that across the country the frequency of the claims alleging negligence in medical liability have gone down, and that’s countrywide,” Hook said. “It certainly has gone down in Oklahoma. We think our numbers have gone down a little more than other states, possibly.” The change is definitely the result of the tort-reform effort, especially the certificate-of-merit requirement, he said. “It prevents any attorney from just going to the courthouse and filing a claim without … validating it,” Hook said. “The frequency has dropped tremendously, and that is the main cause of it.” Malpractice attorneys work on contingency, and requiring a front-end investment in proving a claim’s legitimacy has cut the number of frivolous complaints, Hook said. Caps on noneconomic damages haven’t been in place long enough for their effect to be judged, he said. While there are some relatively small changes PLICO would like to see added to the state’s tort-reform law, most of the key pieces are now in place, Hook said. “What we have in place right now is pretty good, if we can just retain them,” he said. Morrissette pointed out that while malpractice awards have gone down, other key indicators of medical mistakes collected by the federal database – “adverse action reports” and licensure actions – have stayed at historic levels. His interpretation: Doctors are still making as many mistakes as ever; their insurance companies just aren’t having to pay for them.