Tort-Reform Demonstration Projects -- Enough Already

by Jason D. Fodeman

In Mr. Obama’s primetime speech to the Joint Sessions of Congress, he called for “demonstration projects” to “test” the benefits of malpractice reform. At the time, many contended our country is way beyond the need for demonstration projects and needs national comprehensive tort reform. Unpredictable, exorbitant jury payouts have resulted in lawyers flooding the system with baseless lawsuits. This increases medical-malpractice premiums, a cost which is ultimately passed on to the patient, and forces many doctors, especially those in high-risk fields, to retire or relocate. The threat of lawsuits also compels physicians to order expensive, often unnecessary tests, procedures, and referrals simply to thwart lawsuits. Despite substantial evidence malpractice reform could quell these problems, except of course from the trial bar and their shills in Congress, Mr. Obama demanded proof.

Mr. Obama should be careful what he wishes for. He asked for a tort-reform success story and he just got it in the form of a new report by the Missouri Department of Insurance, Financial Institutions, & Professional Registration. The report demonstrates the efficacy of tort reform. In 2005, the state of Missouri was a gold mine for the trial bar. Venue shopping, where lawyers try cases in friendly courts irrespective of place of injury, was rampant. Courts could also force defendants to pay 100 percent of judgments even if their negligence contributed only 1 percent to the injury.

In 2005, the Missouri legislature decided the real malfeasance was being committed by trial lawyers raiding the system rather than doctors, and passed malpractice reform. They capped noneconomic damages at $350,000. The state also enacted requirements to preclude frivolous lawsuits from ever seeing the light of day by requiring the attainment of an affidavit alleging negligence from a health-care professional actively practicing the same subspecialty as the defendant. The law also requires cases to be tried in the county where the alleged negligence occurred, as opposed to the county with the loosest pockets. The statute further provided defendants would have to pay the full judgment only if his or her comparative fault exceeded 50 percent.

The new report shows that in 2008 1,125 new claims were filed in the state of Missouri. This was down substantially from 2005 and the lowest number of claims filed since 1999. The program has controlled costs. It has allowed doctors in Missouri to practice better medicine and serve the best interests of the patients, not those of the trial bar.

Faced with additional new evidence that malpractice reform works, will Mr. Obama require badly needed comprehensive tort reform be included in the health-care bill, thus letting the success of Missouri be achieved on a national level? Do not hold your breath. There is a reason Missouri is called the Show Me State, and right now it is showing the nation the true colors of this demonstration-project folly.

– Jason D. Fodeman, M.D., is a former health-policy fellow at the Heritage Foundation and author of How to Destroy a Village: What the Clintons Taught a Seventeen-Year-Old.

Critical Condition

NRO’s health-care blog.