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State Medical Malpractice Caps Under Fire

John Commins, for HealthLeaders Media, April 28, 2014

The reasoning behind the malpractice cap and its effect on premiums is just common sense, he says.

"It provides a measure of predictability for the insurance companies," he says. "They are the ones who have the authority on whether to settle a case or to take it to trial. If you have a predictable number as to what your non-economic damages are going to be, then you are able to settle claims at a lesser amount. If the sky's the limit then your costs of settling the claim increase."

Scott also predicts that malpractice premiums will increase in Florida now that the cap has been invalidated and more suits are filed.

"There isn't any doubt about that. We have heard word from some of the insurance companies that it is an inevitable result," he says. "They mandated back in 2003 when they passed the cap something called the 'presumed factor' by which the insurance companies were supposed to reduce their rates. If you take away the cap that provides some measure of stability for awards then I don't see there is any way that rates wouldn't go up."

More Suits Anticipated
Levin concedes that lawsuit filings will likely increase with the caps invalidated, but not for "frivolous" reasons.

"Malpractice cases of all fields of personal injury are the most expensive to pursue. The average malpractice case for a catastrophic injury with multiple defendants usually costs about $200,000 in out-of-pocket expenses that the attorney fronts on behalf of the client," he says.

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1 comments on "State Medical Malpractice Caps Under Fire"


john winninger (4/28/2014 at 10:35 AM)
While malpractice caps have brought down insurance rates for physicians, what they don't do is change practice behavior. Physicians don't do less testing because they are not longer afraid of malpractice suits. The right has been selling this as the way to reduce healthcare costs, but in state after state with caps, we see no evidence at all of physicians changing behavior. Why? Because physicians do extra testing for so many more influential reasons: patients think more testing is better medicine, physicians learn that extra testing is standard of care, physician's get paid more if they own the machines that do the tests, etc etc etc.