#tort caps

In subsequent years, the number of lawsuits and the cost of malpractice insurance dramatically increased. According to the National Practitioner Data Bank, which records physician claims, the number of claims against physicians rose by 37 percent between 2000 and 2004. In 2003, the number of frivolous claims, those that resulted in no payment, rose by 73 percent. Though no payouts occurred, the average cost of defending each claim totaled more than $11,000. For the lawsuits ended with indemnity, the average sum increased by 50 percent between 2001 and 2004.

This resulted in a dramatic increase in malpractice premiums. According to surveys by the Missouri State Medical Association (MSMA), the average increase in malpractice premiums per physician was 61.2 percent between 2002 and 2004. In a survey of every neurosurgeon in Missouri, the average increase was 116 percent between 2001 and 2003. The insurance companies were still losing money, however, and many opted to leave the state. Between 2001 and the end of 2002, a total of 24 malpractice insurance carriers stopped serving Missouri, leaving just eight.

Physicians also began to leave the state. At the end of 2002, more than 200 physicians had left or retired early. By 2004, according to an MSMA survey, 29 percent of Missouri physicians were considering leaving the state and 17 percent were considering early retirement.

Then, in 2005, Gov. Matt Blunt signed into law a bill restoring caps on noneconomic damages. These were again set at the $350,000 limit. Between 2005 and 2012, the number of claims dropped by almost 50 percent, the indemnity of paid claims dropped by 20 percent and premium decreases amounted to $27 million across the state.

Now the crisis is happening again. On July 31, 2012, the Missouri Supreme Court overturned the 2005 law, declaring caps infringe "on the jury's constitutionally protected purpose of determining the amount of damages sustained by an injured party." The 4-3 decision was propelled forward with a vote from a specially appointed judge who filled in for Judge Zel Fischer.

The case in question is Watts v. Cox Medical Center, which alleged Naython Watts suffered brain damage attributable to negligent prenatal care. Before the Supreme Court decision, the plaintiff was awarded $3.721 million in damages. This was substantially less than the $8.5 million requested by the plaintiff and the $4.821 million that would have been awarded by the jury without the cap. Watts' attorney, whose fees were 40 percent of the award, challenged the economic cap, taking the case to the Missouri Supreme Court.

The Missouri State Medical Association, Missouri Chamber of Commerce and many state lawmakers have come out in opposition to this decision. This past legislative season, a proposal to restore caps on noneconomic damages could not pass in the Missouri legislature because of a Senate filibuster. The MSMA continues to lobby in the state legislature in anticipation that progress will be in made in 2014.

Medicine across the country is at a crossroads. In a time of tumultuous change, leaders are searching for ways to both improve care and lower costs. Trial lawyers argue caps protect bad physicians and don't incentivize safe care. Years of data from across the U.S., however, demonstrate that, when caps are removed, the number of cases filed increases but the number of successful cases decreases. This doesn't help patients; it only increases administrative costs of defending malpractice cases — costs that invariably trickle down to patients. The cost of defending frivolous lawsuits increases malpractice premiums across all medical specialties. This is analogous to prophylactically increasing an individual's car insurance expecting it will make him a better driver.

There are many other and better ways to incentivize safe care, several of which are part of the Affordable Care Act. The last repeal of a cap on noneconomic damages saw an exodus of physicians from Missouri attributable to the increases in practicing costs. With the looming shortage of primary care physicians — and health care providers in general — Missouri can't afford to have this happen again. If we don't take this opportunity to learn from the past, we will continue to repeat it, leaving doctor-less patients saddled with the consequences.