There is no tort reform in the currently emerging bills. So, we signed on with a host of other societies and the AMA on a joint letter to Henry Waxman (D-Calif.), Chair of the Energy and Commerce Committee, urging Congress to include meaningful medical liability reform as a critical component of any health care reform legislation.

The letter highlighted the inefficiencies of our current medical liability system, escalating and unpredictable awards, and the high cost of defending against lawsuits. We are referring to recent data from Ohio on their malpractice statistics that underscore the changing med-mal issues. It underscored that as insurance becomes unaffordable or unavailable, physicians must make tough decisions including altering or limiting their services because of the following liability concerns:

• Most Cases Result In No Payment. The overwhelming majority of medical malpractice cases in Ohio continue to be resolved without any indemnity payment being made to the claimant. Nearly 80 percent of claims have no indemnity payments.
  
  
• Total Claims Are Down Significantly. The total number of claims has decreased significantly. Data from 2007 show 3,451 claims, compared to 4,004 claims in 2006 and 5,051 claims in 2005.  This 31 percent decrease relative to 2005 data is heartening.
  
  
• Average Indemnity Is Up. Though volume has decreased, other indicators have trended sharply in the other direction. Average indemnity, which was $269,374 in 2005, is now $315,635 in the latest report — a 17 percent increase since the first data point. Overall, these data suggest that only the more serious malpractice allegations are being pursued, but that providers and insurance companies are having to defend themselves more aggressively in instances where patients choose to take action.
  
  
• Legal Costs are on the Rise. Even when an indemnity payment is not made, there are significant investigation and legal costs related to the claim. In Ohio, the total allocated loss adjustment expenses (ALAE) for 2007 was $103,033,668. ALAE averaged $35,603, up over 45 percent since 2005.
  
  
• Age of Claim Matters. There is a significant correlation between the age of the claim and the size of the indemnity payout, if paid. Of the claims that closed with an indemnity payment, 186 closed within one year of being reported and had average paid indemnity of $67,146. That figure rose to $297,935 for 202 claims closing in their second year. Nine claims closed seven or more years after being reported, having average paid indemnity of $2,785,326.

The ACC is working to create a specialty society coalition to come together to get tort reform language inserted this fall into whatever bill finally emerges from  Congress. While we realize getting caps on non-economic damages is not politically possible at this time, real reform could gain traction. Why not get language that would require standards of merit for the tort pleading, and standards of merit for "expert" witnesses (facilitated by societies). What about periodic payments, collateral damages provisions, protections related to adherence to evidence-based care, and other such provisions to reduce frequency and severity of legitimate claims, and to greatly reduce illegitimate claims? We plan to try to organize a new effort in these regards.