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In the wake of a new round of increased medical malpractice premiums in Connecticut and elsewhere, legislators are proposing strict limits on malpractice payouts in hopes of lower-cost coverage. But in a study completed this month, Tom Baker, director of the Insurance Law Center of the University of Connecticut School of Law, concludes that limiting medical malpractice recovery to a fixed “cap” would rob the most seriously injured victims of medical malpractice and probably wouldn’t lower premiums. Baker, who is Connecticut Mutual Professor of Law, was commissioned to do the study by the Connecticut Trial Lawyers’ Association. He says he asked for and received complete independence in his research, as he has with prior research funded by insurance companies. Drawing on extensive empirical data, Baker concluded that mistakes by hospitals and doctors cause more injuries — and more serious injuries — than people sustain in the workplace, but that injured patients usually do not sue their doctors even with valid claims. The report attacks head-on the notion that big awards for frivolous claims are common. Baker agrees with a Harvard Medical Practice Study conclusion that “the real tort crisis may consist of too few claims” in a system that’s inaccessible to those injured by health care professionals. A Harvard study in 1992 of New York City during 1984 of 100,000 in-hospital injuries found 20,000 arose from medical malpractice and were disabling, and 7,000 of those resulted in death. Nevertheless, at the same time, fewer than 4,000 medical malpractice suits were filed in New York City that year. Researchers studied 31,000 patients’ hospital records in Utah, Colorado and New York to detect instances of medical malpractice. A more in-depth Illinois study concluded that 85 percent of claims filed involved arose from a preventable adverse result. And regardless of methodology, the studies found a high rate of medical malpractice and a low rate of patient claiming, Baker found. Four separate studies, he writes, contradicted the common “perception that medical malpractice litigation produces large payments to undeserving patients.” Baker’s analysis concurred with the 1991 Harvard study that found “the legal system appears to do a surprisingly accurate job of sifting out the valid from the invalid claims.” Baker found that jurors are skeptical of patient claimants, and essentially put the patient on trial. In Connecticut, of all med-mal cases tried to verdict between 1992 and 2001, defendants won 68 percent. The studies Baker sifted conclude that jurors can follow the testimony of medical experts, and that they generally come to the same conclusions as independent experts. The great majority of people who suffer from malpractice injuries never sue in the first place, Baker found. This group, he noted, absorbs much of the cost of medical malpractice at the earliest level. Thus, neither the care providers nor their liability insurers pay, but the victims’ health insurers incur the cost of care for injuries that arose from malpractice. From an economics standpoint, it does not increase the cost of medical malpractice when costs are shifted from patients to med-mal insurers — it’s a matter of who bears the cost, he wrote. Tort law in the U.S. is based on shifting the cost to the party that caused the harm for three key policy reasons: to prevent future injuries, to make the right party compensate for the injured; and finally, to promotes responsibility, compassion and law-abiding behavior. Those points, Baker notes, are the three fundamental goals of the U.S. civil justice system. Medical negligence victims can’t turn to a simplified system like workers compensation for quicker, no-fault awards, Baker notes. The proposal to cut medical malpractice costs by imposing fixed caps on awards is cruel and flawed, Baker determined. Caps make malpractice cheaper, he notes, adding that “Reducing the incentive to prevent medical malpractice is an especially puzzling prescription at a time when the delivery of medical care is becoming increasingly managed and bureaucratized.” If patients sense hospitals and doctors are more concerned about dollars than people, by embracing caps, it would likely prompt more suits, not fewer, he theorized. In the final analysis, the new call for caps is driven by the carriers’ poor results in the stock market, not in court, Baker writes. Christopher D. Bernard, current head of the Connecticut Trial Lawyers Association, said “It’s just like what everyone else is experiencing with their 401(k)s.” Bernard says that an increase in malpractice awards is due to the system weeding out more questionable cases, with lawyers only bringing the most serious matters. Caps would have no effect on frivolous suits and would punish the most seriously injured most, said Bernard, a partner in Bridgeport’s Koskoff, Koskoff & Bieder. Lawyer-Lobbyist Jay Jackson, who represents the Glastonbury-based Connecticut Medical Insurance Co., said Jan. 22 that a new group of caps proposals, from $250,000 to $750,000, have just been introduced as proposed bills. The CMIC, a doctor-owned med-mal insurer for two thirds of Connecticut’s physicians, favors caps only on non-economic damages, such as pain and suffering, He said. “If you establish caps you limit what can be paid out,” said Jackson, adding that in other states, caps have led to lower med-mal premiums.

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