Since the middle 70's there has been a constant attack on the part of the medical profession, which is driven by their insurers, to limit the rights of victims whose lives have been destroyed by the actions of their own physicians. The underlying basis for this attack is without any substance, but it has been accepted by numerous
legislatures and, unfortunately, by a large segment of the public in general.
The argument generally goes as follows: The fear of patient claims forces physicians to practice defensive medicine and to order unneeded tests to protect themselves from law suits, thereby driving up the cost of medical care. The fallacy of this reasoning is apparent on the face of the argument itself. Unneeded tests or evaluations is negligence itself or worse. No
unneeded test or "defensive medicine" ever saved any physician from being sued, and certainly would not establish a defense to a valid negligence claim. If any patient had the choice of having a test which would provide his doctor with a defense to a claim or not having it, and exposing himself to injury or death, which would he take?
The other prong of the argument is the claim that insurance rates for physicians are being raised by runaway verdicts which are increasing the cost of medical care causing all of society to suffer. The truth here is that medical malpractice insurance is the most profitable of any line of insurance that is sold in America today.
Claims paid and defense costs bear no relationship to premium dollars charged to physicians. Where so-called reforms have been instituted no savings has resulted to the medical profession in premium dollars paid and certainly no reduction in medical costs has inured to the benefits of the health care consuming public.
Malpractice insurers do not rate their customers based upon claims experience. The physician who has lost multiple cases brought against him or her pays the same as the physician who has never had a claim. Physicians in Virginia, where no recovery can exceed
an overall cap on damages without regard to whether the damages are economic or
non-economic, pay roughly the same premiums as physicians
in surrounding states and the District of Columbia, which are known for huge recoveries and have no damage cap.
The effect of all of this upon society and upon the victims of medical negligence is dramatic. In a state such as Virginia,
with its cap on all damages, regardless of type of a victim of medical negligence who has $3 to $4 million in medical bills, ends up bankrupt, on public assistance, Medicaid, and/or Medicare, which is paid for by all of us
after having obtained the maximum recovery allowed by law. At the same time the negligent physician who destroyed his life pays the same premium as his or her colleague in neighboring states with no cap, and the insurance industry banks the money saved by convincing the legislature that the system is broken.
The true enigma is that physicians who are the ones being gouged descend upon the legislature at every call of the insurers who are gouging them, clamoring for more "reform."