OPINION: FALSE DIAGNOSIS - There is no medical malpractice crisis. There is an insurance crisis.

"Medical malpractice litigation 'reform' is a high
priority for President Bush....Their proposed solution:
caps on jury awards to patients and on lawyers'
contingent fees. No one disputes that insurance
premiums have risen significantly. The question is
whether a crisis in states' tort systems accounts for
the increase. Consider Mr. Bush's home state of Texas, America's second most populous state and the third
largest in terms of total health care spending. After
studying a database maintained by the Texas Department
of Insurance that contains all insured malpractice
claims resolved between 1988 and 2002, we saw no
evidence of a tort crisis. Adjusting for inflation and
rising population, we arrived at the following findings:
Large claims (with payouts of at least $25,000 in
1988 dollars) were roughly constant in frequency. The
percentage of claims with payments of more than $1
million remained steady at about 6 percent of all
large claims. The number of total paid claims per 100
practicing physicians per year fell to fewer than five
in 2002 from greater than six in 1990-92. Mean and
median payouts per large paid claim were roughly
constant. Jury verdicts in favor of plaintiffs showed
no trend over time. The total cost of large
malpractice claims was both stable and a small
fraction (less than 1 percent) of total health care
expenditures in Texas. In short, as far as medical
malpractice cases are concerned, for 15 years the
Texas tort system has been remarkably stable. Texas's
situation is not unique. One study of Florida's
experience from 1990 to 2003 also found declines in
paid claims per 100 practicing physicians as well as
per 100,000 population. Over the same period in
Missouri, the total number of malpractice claims fell
by about 40 percent and the number of paid claims
dropped almost by half....The medical malpractice
system has many problems, but a crisis in claims,
payouts and jury verdicts is not among them. Thus, the
federal 'solution' that Mr. Bush proposes is both
overbroad and directed at the wrong problem."

Bernard Black And Charles Silver Are Law Professors
At The University Of Texas At Austin. David Hyman Is
A Professor Of Law And Medicine At The University Of
Illinois. William Sage Is A Law Professor At Columbia,
The New York Times, 03/10/2005