Senate Fails to Stop Shark Attacks

In all four of the movies of the Jaws series, members of the Brody family are attacked by giant man-eating sharks. It’s probably impossible to stop filmmakers from rehashing the overused Jaws plot into another sequel, but it is possible to stop man-eating medical malpractice lawyers from causing health care costs to spiral upwards.

Unfortunately, members of the Senate missed an opportunity to do just this with their recent filibuster of the “Patients First Act of 2003.” This remedy, which already passed the House of Representatives by 229 to 196, would cap non-economic damages for medical malpractice suits at $250,000. It also would raise the bar for damage awards, making it harder for ambulance chasing sharks to feed off of tax dollars and doctors’ wages.

One of the most widespread harms caused by unreasonable malpractice awards is an increase in the cost of medicine. According to the Heritage Foundation, malpractice insurance rates for some providers went up as much as 30 percent in 2001. As awards by judges and juries get larger, malpractice insurance companies are forced to raise their premiums. Many of these price increases get passed on to the patient.

The cost of treatment also goes up because doctors are forced to perform unnecessary tests. Doctors use this practice, called defensive medicine, to protect themselves from unwarranted litigation. Defensive medicine alone was estimated by the Wall Street Journal to cost about $50 billion a year, and according to a 2002 Health and Human Services report on the subject, 79 percent of doctors admitted to ordering more tests than medically necessary. Many of these tests are also invasive, lengthening recovery time.

Many opponents of the Patients First Act claimed that the quality of care would decrease if non-economic damages were capped. However, the reality is that the threat of malpractice lawsuits can actually prevent physicians from increasing the quality of care. For example, many doctors are afraid to respond to their patients’ questions via email because they are afraid that those messages may be used against them in court. Others are less likely to perform high risk treatment because of the fear of being sued, denying many patients crucial medical care. Finally, many physicians are unwilling to discuss their mistakes with their colleagues because of these suits, even if these mistakes do not reflect negligence.

Trial lawyers have an enormous stake in the current system. The HHS report showed that even when plaintiffs win the malpractice suit, they usually see less than half of their award after legal and administrative fees have been paid. Malpractice litigators will often have a portfolio of cases, hoping that one of them will win big. These attorneys work hard to perpetuate this “lawsuit lottery” system—so it’s not surprising that they are the biggest donors to judicial campaigns. In Florida, trial lawyers made up 80 percent of all judicial campaign donations.

The Senate bill will make the malpractice system fairer and more conducive to quality care. Twenty-five years ago, the state of California passed reforms similar to the Patients First Act. Since then, insurance premiums around the nation have gone up 505%, while they have only gone up 168% in California. The state has saved millions of dollars in Medicaid and Medicare payments, and it has not experienced the negligence that liberals claim will occur with the Patients First Act. That’s why HHS estimates that the Senate bill would lower the costs of health care by 5 to 9 percent, making health care coverage more affordable for the 4.3 million Americans who are currently uninsured.

While the Brody family often became fish food in the Jaws series, the Senate could have curbed litigator attacks with the Patients First Act. Until the Senate moves to pass this important bill, ravenous lawyers will continue to chew and degrade the American health care system.