Oklahoma doesn't face a lawsuit crisis, and there are few "frivolous" lawsuits. Judges already have the ability to throw out frivolous cases and sanction the attorneys who file them. Most civil lawsuits are debt- and contract-related--in other words, businesses suing other businesses or customers. Tort filings are decreasing, not increasing, both in Oklahoma and nationally.
A. The 13 OCIS counties (Adair, Canadian, Cleveland, Comanche, Ellis, Garfield, Logan, Oklahoma, Payne, Pushmataha, Roger Mills, Rogers and Tulsa, which together account for more than one-half of the state’s population), saw a 17.5 percent decrease in the number of tort cases (claiming over $10,000) filed from 2003-07 (6,764 to 5,576).
B. During that same time period, the number of all civil cases (over $10,000) filed has increased 4 percent (primarily due to an increase in foreclosure and indebtedness cases), and the population of Oklahoma increased 3.4 percent.
Medical malpractice lawsuits make up a small percentage of tort filings and, when they go to trial, overwhelmingly are decided in favor of the doctor.
A. From 2003-07 medical negligence filings decreased by 29.7 percent in the state’s 13 most populous counties.
B. From 2004-07, 10 counties had no medical malpractice lawsuits.
C. From 2004-07, 39 counties (51 percent of the state’s counties) had fewer than five such lawsuits.
Caps on noneconomic damages do not lower doctors’ insurance premiums and have no effect on economic growth.
A. Medical malpractice premiums averaged across specialties in states with caps are 2 percent higher than in states without caps.
B. States with sweeping, one-sided changes like those in HB 1603 have the same economic growth rate as those without the so-called “reforms” — 3.5 percent.
C. According to the Government Accountability Office, a reduction of 25 to 30 percent in malpractice costs would lower health care costs by less than 0.5 percent.
Caps on noneconomic damages discriminate against the elderly, children, stay-at-home moms, ethnic minorities and low-wage earners.
A. Employment income is the basis for calculating most economic damage awards. Noneconomic damage caps discriminate against those with no incomes or low-wage earners. On average, women earn less than men. Therefore, they will receive less of an award than would a man with the same injury. Caps discriminate against retirees and seniors, who often suffer neglect and abuse in nursing homes and other long-term care facilities, because they have no employment income.
Caps don’t help states attract doctors.
A. In a March 2008 study in the Journal of Empirical Legal Studies, researchers examined the effects of malpractice premiums and tort reform on the number of OB-Gyns from 1992-2002. The supply of OB-Gyns wasn’t associated with premiums or “tort reforms; most OB-Gyns didn’t respond to premium increases by relocating out of state or closing their practices; and caps on noneconomic damages and other tort reforms didn’t help states attract and retain OB-Gyns.
What’s really needed is insurance reform.
A. Thirteen years after California passed a $250,000, non-inflation-adjusted cap on damages (MICRA, 1975), doctors’ premiums had increased by 450 percent and reached an all-time high. In 1988 California voters passed a stringent insurance regulatory law, Proposition 103, which reduced California doctors’ premiums by 20 percent within three years and stabilized rates.
Most medical malpractice claims have merit.
A. Harvard University researchers found that 97 percent of claims they studied involved medical injury; few claims where there is not error were ever paid; the incidence of patients who were seriously injured by medical negligence not receiving any compensation was a far bigger problem than that of cases without merit receiving compensation; and one in six of those who were injured by medical negligence and filed a claim still received no compensation at all.
Real tort reform would address medical errors.
A. As many as 98,000 Americans die in hospitals each year as a result of preventable medical errors. The cost is $29 billion a year. If the CDC categorized medical errors as a cause of death, it would be the sixth-leading cause of death, ahead of car accidents or guns.
B. Some research puts the number of deaths even higher: The Leapfrog Group, a business consortium created to reduce health care costs through improving care, estimates 90,000 people die each year as a result of hospital-acquired infections alone.
C. One out of every 20 people who obtain care at an American hospital each year contracts an infection during their care.
A tiny number of doctors is responsible for the bulk of medical malpractice payments.
A. Just 3.6 percent of Oklahoma doctors have been responsible for 43.4 percent of all malpractice payouts to patients.
Oklahoma is in better shape economically than most states, which debunks claims that a broken legal system is driving away businesses.
A. According the Kaiser Family Foundation’s most recent measure of economic distress, Oklahoma ranked 34th in home foreclosures (Nov. 2008), 46th in year-to-year change in unemployment (Nov. 2007-Nov. 2008), 46th in month-to-month change in food stamp participation (Sept. 2007-Sept. 2008), and 46th overall.
B. According to the “2009 Oklahoma Economic Outlook” from Oklahoma State University, for all of 2008, the state is expected to post job growth of 1.1 percent, compared to a 0.1 percent decline nationally. Job growth in the state is expected to be flat in 2009, compared to a 1.5 percent decline nationally. Oklahoma ranks 9th in the list of top job-growth states (from Oct. 2007-Oct. 2008).
C. On the Forbes Magazine 2008 list of best cities for jobs, Oklahoma City ranked 19th out of 100.
D. Oklahoma was 4th in 2007 for business startups, according to the Kauffman Index of Entrepreneurial Activity. The same index had Oklahoma 4th out of 40 real estate markets for corporate expansion or relocation.
Judges don’t think there is a problem with frivolous lawsuits.
A. A 2006 survey of the state’s district judges conducted by Sen. Charles Laster found that 68.75 percent of judges reported fewer than 5 percent of cases assigned to them were “frivolous”; 66.25 percent considered jurors to be “very capable” of reaching “fair and reasonable” decisions in civil litigation; in the last 24 months in each respondent’s courtroom, 95 percent believed juror awards were disproportionately high less than 10 percent of the time; all respondents reported granting five or fewer remittiturs because of jury verdicts were excessive; 88.75 percent believed noneconomic damages SHOULD NOT BE capped at $250,000; in the last 24 months, 98.75 percent of respondents reported juries had granted punitive damages five or fewer times; 90 percent of respondents believed Oklahoma didn’t face a litigation crisis that required major changes to the judicial system.
Oklahoma does not face a medical malpractice crisis.
A. Oklahoma medical malpractice insurers paid $43.8 million in claims in 2005. This makes the total payout of medical malpractice claims well less than 1 percent of health care expenditures.
B. According to the federal government's Medicare program, Oklahoma doctors spend an average of only 1.7 percent of their practice incomes on malpractice insurance, 56.4 percent less than the national average.
C. From 2007-08, Oklahoma physicians’ medical malpractice premiums remained flat.
D. The state’s population grew by 7 percent from mid-1997 to mid-2007. The number of doctors grew by 24 percent during this time.
E. Average malpractice payouts to individuals in Oklahoma declined by 16.4 percent from 1996-2003, when adjusted for medical services inflation.
F. From 1996-2004 only 12.2 percent of payouts were for more than $600,000.
G. Only 16 malpractice lawsuits went to a judge or jury verdict in Oklahoma in 2007 out of 687 closed claims.
H. The number of paid claims per 1,000 physicians nationally dropped from 25.2 to 18.8 from 1991 to 2003.
I. According to the Kaiser Family Foundation (www.statehealthfacts.org), the average payment on medical malpractice claims in 2007 was $266,717 — well under the national average of $323,266 per claim.
J. Oklahoma had 193 physicians per 100,000 people in 2003, according to American Medical Association statistics. By 2007 the ratio had grown to 200 per 100,000 people.
PLICO, which insures the majority of Oklahoma doctors, is in excellent financial shape.
A. PLICO is in the best financial shape since it began (in 1979), said Jack Beller, M.D., legislative chair of the Oklahoma State Medical Association. He further noted that physicians who stayed with PLICO during its restructuring period would receive premium reductions in 2009. (Oklahoma State Medical Association newsletter, Nov. 26, 2008).
B. In 2008 PLICO wrote $63.9 million in premiums and reported claims of $35.5 million.
Oklahoma compares favorably to other states in its primary care doctors.
A. Family practice physicians are 43 percent of Oklahoma primary care physicians, compared to 28 percent nationally; OB/Gyns are 11 percent of Oklahoma primary care physicians, compared to 12 percent nationally; general practice physicians are 9 percent of Oklahoma primary care physicians, compared to 6 percent nationally.
Average medical malpractice settlements or awards have decreased since 2004 and are nothing near the runaway verdicts doctors claim are rampant.
A. The average award in 2007 was $275,151.
