Malpractice Insurance Caps

Many people support malpractice insurance caps.  They believe that malpractice insurance award caps will reduce medical costs in two ways: i) by decreasing malpractice premiums and ii) by decreasing the amount of defensive medicine physicians practice to avoid lawsuits.  An article by Shirley Svorny, however, argues that malpractice awards are bad medicine.  Physicians who are more careless will have higher malpractice premiums; instituting malpractice caps dulls the incentive to practice safe medicine.

Physicians make a number of arguments of why this logic doesn’t fly. The first is that malpractice awards are haphazard and that few victims of actual negligence sue.  Svorny cites some research (see below) which finds a correlations between the presence of negligence and the amount of the award; demonstrating that there is some relationship between physician performance and court awards.  Other critics claim that the malpractice system has high administrative costs.  This is true.  Svorny accurately points out, however, that most of the administrative costs occur in the limited number of cases that go to court.  Further, there is open debate of whether malpractice lawsuits keep doctors from reporting errors.  Although the article cites some research that states that lawsuits start discussions about improving care quality, I believe that self-reporting of errors will decrease in a non-linear fashion as malpractice awards increase.

Svorny’s research also identifies that conventional wisdom that physician malpractice premiums are not experience rated is not entirely correct.  Additional information is below.

Malpractice Insurance Market, Premiums and Risk

Physicians who are higher risk do end up paying higher malpractice premiums. This occurs through a number of mechanisms.

• Underwriting: When applying for malpractice insurance, physicians describe their practice profile, whether they perform surgery, number of patients treated, educational background, whether their license has been suspended, whether they are board-certified and other information.
• Experience Rating.  Although base premiums often do not very within a specialty by state, carriers often “impose premium surcharges on physicianswhose claims histories do not meet the company’s standards, or offer discounts to physicians with clean histories.”  Some carriers also give physician longevity credits to physicians with good claims experience.
• Experience Rating across carriers.  “…most experience rating takes place across carriers. Insurance carriers specialize in serving physicians with similar risk profiles. Physicians who do not meet one carrier’s risk profile must seek insurance elsewhere. This allows insurance carriers to specialize in underwriting certain risks.”  Specifically, surplus-line carriers offer malpractice coverage to physicians who cannot secure coverage through more standard market.  As expected, premiums are much higher in this market.

Other Malpractice Insurer’s Risk Management Tools

• Practice Constraints.  Some insurers limit the scope of the physicians practice which they will cover.  “For example, California rate filings include forms to exclude performing surgery, administering anesthesia, treating pregnancy, and practicing over the Internet…Underwriters verify that physicians adhere to the restrictions in their policies when the policies are renewed each year and by looking at the doctor’s website or advertisements aimed at consumers.”
• State Medical Board Sanctions.  Although State Medical Board sanctions of physicians is somewhat rare, those who are sanctioned generally must gain malpractice coverage in the more expensive surplus lines.
• New Treatments. Malpractice insurers often do not cover more novel and riskier procedures.
• Direct Risk Management Practices. “A 1989 Institute of Medicine survey of 20 commercial and physician-owned carriers found four types of risk-management strategies to be prevalent: (1) data gathering and analysis,(2) development of clinical standards and protocols, (3) educational programs, and (4)premium discounts for risk-management activities.

Articles showing a relationship between physician negligence and the size of court awards

• Frederick W. Cheney et al., “Standard of Care and Anesthesia Liability,” Journal of the American Medical Association 261, no. 11 (1989): 1599;
• Henry S. Farber and Michelle J. White, “Medical Malpractice: An Empirical Examination of the Litigation Process,” The RAND Journal of Economics 22, no. 2 (1991):199–217;
• Paul C. Weiler et al., A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation (Cambridge, MA: Harvard University Press, 1993);
• David M. Studdert et al., “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,” The New England Journal of Medicine 354, no. 19 (2006): 2024–33;
• Jun Zhou, “Economic Determinants of Noneconomic Damages in Medical Malpractice Claims,” working paper, Bonn University (2011).

Source

• Shirley Svorny, “Could Mandatory Caps on Medical Malpractice Damages Harm Consumers,” Cato Institute, Policy Analysis #685, October 20, 2011.