issue guide: Medical Malpractice

Background & Facts

see also the skinny, pro & con, links

Malpractice 101

A patient who believes their doctor was negligent can file a malpractice suit in state court. Most suits either get thrown out or are settled before going to trial, but for cases that win in court, a jury can make three kinds of awards: reimbursement of actual economic losses, such as medical expenses and lost wages; compensation for pain and suffering; and punitive damages above and beyond those costs in order to penalize the doctor for outrageous conduct.

About 15 malpractice claims for every 100 physicians are filed each year; less than five of those claims end up with insurance payments. (CBO)

Rising claims and premiums

The number of claims filed each year hasn't really risen. What has gone up, however, is how much is awarded for those claims. In 1986, the average payment was about $95,000; in 2002 it was $320,000 (that's an average of an 8% increase each year – more than twice the rate of inflation). (CBO)

Malpractice insurance premiums (what doctors pay to protect themselves from lawsuits) were also fairly stable through the 90s, but they shot up 15% between 2000 and 2002. (CBO)
All doctors were not hit equally: OB/GYN's, surgeons and internists saw their premiums rise even faster - OB/GYN's by 22% and surgeons and internists by 33%. (CBO)

Premiums also vary vastly across the country, from $3,803 for a doctor of internal medicine in Minnesota to $56,153 in Dade County, Florida. An OB/GYN in those places would pay $17,431 and $201,376 respectively. (GAO)

Limiting litigation

States: 40 states already have laws on the books that aim to rein in medical malpractice costs. One of the first laws passed and held as a model for the House bill was California's Medical Injury Compensation Reform Act (MICRA) of 1975. MICRA placed a $250,000 cap on non-economic damages, limited attorney fees and allowed for private arbitration agreements.

Federal level: In July 2005, the House passed H.R. 5
- formally called the Help Efficient, Accessible, Low Cost, Timely Healthcare (HEALTH) Act of 2004. It caps non-economic damages at $250,000 and punitive damages to $250,000 or two times the amount of economic damages awarded. Under the law, drug companies couldn't be sued for punitive damages, provided they did nothing illegal. Similar bills failed in the US Senate in 2003 (S. 11) and 2004 (S. 2207).

Bush prioritized medical malpractice reform in 2005, but HEALTH never made it through the Senate. (WP) With the Democrats taking over the majority in Congress in 2007, any attempts at medical malpractice reform fell by the wayside.

Updated January, 2007.

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