HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Thursday, March 10, 2005

National Tort Reform? Not If Texas is Any Indication

Law professors Bernard Black (Texas), Charles Silver (Texas), David Hyman (Illinois), and William Sage (Columbia) write in their op-ed piece in this morning's New York Times that there is no evidence that a crisis in states' tort systems is driving the increases in med-mal premiums.  They summarize the results of their review of all closed claims in Texas between 1988 and 2002 (the year before Texas' legislature enacted sweeping tort reform measures):

Large claims (with payouts of at least $25,000 in 1988 dollars) were roughly constant in frequency.

The percentage of claims with payments of more than $1 million remained steady at about 6 percent of all large claims.

The number of total paid claims per 100 practicing physicians per year fell to fewer than five in 2002 from greater than six in 1990-92.

Mean and median payouts per large paid claim were roughly constant.

Jury verdicts in favor of plaintiffs showed no trend over time.

The total cost of large malpractice claims was both stable and a small fraction (less than 1 percent) of total health care expenditures in Texas.

In short, as far as medical malpractice cases are concerned, for 15 years the Texas tort system has been remarkably stable.

Comparable studies of claims in Florida and Missouri lead to consistent results.  The authors conclude:

Malpractice premiums have risen sharply in Texas and many other states. But, at least in Texas, the sharp spikes in insurance prices reflect forces operating outside the tort system.

The medical malpractice system has many problems, but a crisis in claims, payouts and jury verdicts is not among them. Thus, the federal "solution" that Mr. Bush proposes is both overbroad and directed at the wrong problem.


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