Fewer medical malpractice suits 

In 2003, the lawyers fought fiercely with the doctors and their insurance companies over legislation that would keep the lawyers from suing the doctors and their insurance companies, or at least from suing them so often and for so much.

The doctors' side prevailed at the time, the state legislature strongly approving their bill. Five years later, all is not calm. The lawyers keep hacking away at the legislation in court, with considerable success, even though some of them say that the bill never had as much impact as its backers intended. The doctors say the bill had a great and beneficial impact until the Arkansas Supreme Court began mucking it up. The two sides agree only that much still remains to be resolved. From the record so far, it appears the doctors own the legislative branch of government, the lawyers have the judiciary, and the executive branch is lying low.

Act 649 of 2003 was the so-called “tort reform” bill. It aided corporate defendants as well as doctors, but the bill's proponents liked to keep the doctors out front, in the interest of public relations. (Equally aware of the medical profession's generally favorable reputation, plaintiffs' lawyers in malpractice cases like to say they're not really suing doctors, they're suing insurance companies. Defense lawyers in malpractice cases, while paid by insurance companies, like to say that they're really defending doctors.)

Act 649 imposed a number of new requirements on plaintiffs in medical malpractice cases, making it more difficult for the plaintiffs to win their lawsuits and limiting the amount they could win. Doctors at the time said they were on the verge of being driven from practice by the crushing cost of medical malpractice insurance, and they believed that large awards in malpractice cases were driving up the premiums.

Lawyers said that malpractice judgments weren't the cause of the high malpractice insurance rates, and warned that the new restrictions might drive the lawyers away from medical malpractice litigation, to the detriment of injured patients, who had no other way to be compensated.

For better or for worse, Act 649 has in fact reduced the number of medical malpractice suits filed in Arkansas. Records of the Administrative Office of the Courts show 383 malpractice cases filed in 2001, another 383 in 2002, 385 in 2003. In 2004, the first year the effect of Act 649 was felt, the number dropped to 305. It dropped again in 2005, to 282, and yet again in 2006, to 255. It rose slightly in 2007, to 285, but remained far below the pre-Act 649 levels.

The effect of Act 649 on insurance premiums is less clear. The state insurance commissioner is required by law to file an annual report with the legislature on malpractice insurance rates. Those reports have generally said that it's still too early to evaluate the effect on rates of Act 649. This year's report, filed in September, is a shade more specific, though still not as helpful as it could be nor, perhaps, as helpful as the legislature intended for it to be. The report says there were nine medical malpractice rate filings in Arkansas in the most recent 12-month reporting period. Three of those were by new companies entering the state or for new products offered by companies already here, and thus couldn't be compared to previous rates, the report says. Of the other six filings, “One filing provided for an overall decrease in rates of 39.5 percent. Five contained overall increased rates, none above 14.4 percent.”



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