OT: Measure 35 / Medical Malpractice Caps

[Guest guest]

Dear Doctors:

With ballots now on their way to Oregon voters, I thought I would

provide you some actual comments from the insurance industry about how

caps, on recovery for people who have been the victims of medical

negligence, will affect Oregon doctors and malpractice premiums.

Before I do so, however, I want to set the stage for the malpractice

issue, how it affects the health care field and how it affects the US

public. In the interest of full disclosure, I presently have no

medical malpractice cases, and have not accepted one in three years.

What this is about for me, is an issue of public safety.

As you know, dependent upon the study you review, between 95,000 and

300,000 US citizens per year die purely from medical negligence. It is

the fourth leading killer in the US. These numbers do not include

numbers for the people who have died from drug reactions, or the number

maimed by medical negligence. The only deterrent to this negligence is

the financial one raised by lawsuits. While we would like to think

that MDs could eradicate the problem on their own, some recent

statistics show that approximately 5% of the medical profession causes

nearly 50% of the malpractice claims, and that injuries and death from

medical negligence is going up not down.

The reality is that lawsuits on medical negligence have decreased in

the past few years, not increased as the insurance industry and

Bush would like you to think. Lawyers (including myself) refuse to

take even horrific cases of medical negligence because the likelihood

of recovery is so low, and the costs of pursuing a case are already so

high. Acceptance of a case can hinge on very small points (regardless

of the horrific outcome), and in my experience malpractice lawyers will

turn away cases unless there is blatant negligence on the part of the

physician. The average out of pocket expenses for a lawyer on a

medical malpractice case exceed $100,000, and so none of these cases

are taken lightly, or filed on a whim. They are thoroughly

investigated, typically by a panel of doctors prior to pursuing the

case. The chance of success, even in a valid case, is extremely small.

And, hopefully we can agree that no one is asking for a limb to be

accidentally amputated in hopes of getting a " jackpot " verdict. That

is a fallacy that unfortunately a large percentage of the population is

willing to accept. The reality is that due to the huge financial

investment necessary from the lawyer on a case, caps on a lawyer's

recovery will essentially eliminate any malpractice cases from being

taken in Oregon. The result will be that there will be no more

financial disincentive for MDs to avoid mistakes.

The most recent lie, that many MDs have also accepted, is that

malpractice rates have gone up due to malpractice lawsuits. That is

incorrect. The increase in premiums is because insurers were using

investments to keep premiums artificially low in the 1990s so that they

could gain market share. When they lost loads of money in bad

investments in the late 1990s, they decided to recoup those losses by

raising premiums exponentially. At the same time, they blamed

malpractice litigation for the change, and while a large segment of the

population get fired up to put caps on verdicts, the insurers have been

laughing and collecting the largest profits in history.

In fact, there is no difference in premiums in states where there

already are caps on " pain and suffering, " because there is no relation

between malpractice claims in a state, and the malpractice rates. Even

if Measure 35 passes, it isn't going to make a change in Oregon

malpractice premiums, or alter the effect they have on the medical

profession. This is confirmed in an article called " Study Finds No

Link Between Tort Reforms and Insurance Rates, " Liability Week, July

19, 1999.

Now, lets take a look at what the malpractice insurers are really

saying about how caps on malpractice cases will NOT lower malpractice

premiums.

" We wouldn't tell you or anyone that the reason to pass tort reform

would be to reduce insurance rates. "

~Sherman Joyce, President of the American Tort Reform Association, as

quoted in " Study Finds No Link Between Tort Reforms and Insurance

Rates, " Liability Week, July 19, 1999.

" No responsible insurer can cut its rates after a [medical malpractice

tort 'reform'] bill passes. "

~Bob White, President of First Professional Insurance Company, the

largest medical malpractice insurer in Florida, talking about a

proposed $250,000 cap in the January 29, 2003 Palm Beach Post.

" One of the reasons the premiums won't go down is that even if

noneconomic damages are capped, the losses for economic loss, medical

expenses, for example, are still in this current environment escalating

at, medical inflation is running in the double digits. I forget exactly

what it was last year. So even if you were to cap noneconomic damages,

the economic damages will still cause acceleration in the premiums. So

it would not go down, I want to clarify if I misspoke and said I

thought the premiums would go down. "

~Cliff Webster, representing the Washington State Medical Association &

Chairman of the Washington Liability Reform Coalition, testifying

before the Washington State Legislature, House Judiciary Committee,

Feb. 21, 2003.

" Insurers never promised that tort reform would achieve specific

premium savings... "

~From a press release published March 13, 2002, by the American

Insurance Association (AIA).

" [M]any tort reform advocates do not contend that restricting

litigation will lower insurance rates, and 'I've never said that in 30

years.' "

~Victor Schwartz, General Counsel of the American Tort Reform

Association, as paraphrased and quoted in " Tort Reforms Don't Cut

Liability Rates, Study Says, " published in Business Insurance July 19,

1999.

" Insurance was cheaper in the 1990s because insurance companies knew

that they could take a doctor's premium and invest it, and $50,000

would be worth $200,000 five years later when the claim came in. An

insurance company today can't do that. "

~Victor Schwartz, general counsel to the American Tort Reform

Association, " Dose of Legality, " Honolulu Star-Bulletin, April 20,

2003.

" I don't like to hear insurance-company executives say it's the tort

system - it's self inflicted. "

~ J. Zuk, chief executive of Scpie Holdings Inc., a leading

malpractice insurer in California, Wall Street Journal, June 24, 2002.

The bottom line is: A Yes vote for Measure 35 is a vote for insurance

company profits over the safety of Oregon citizens.

I hope that when patients ask you about the real issues behind Measure

35, you will let them know that it is a measure to increase insurance

company profits, not something that will help doctors, or Oregonians.

I ask that you vote No on Measure 35.

Respectfully,

DeShaw, D.C., J.D.

[Guest guest]

Dr. Lubcke:

I believe the perception is incorrect for a number of reasons.

I spend time with two of the most successful medical malpractice

lawyers in Oregon, and in my experience discussing malpractice cases

with them, this is most certainly not the case. In the first place,

the scenario is not really viable. Almost always (probably over 99+%)

these cases are accepted under contingent fee agreement. Which means

if the lawyer gets nothing for the case, they get nothing in legal

fees. For the purposes of your question though, the point is that

there are no billable hours to be run up when it is a contingency case.

Lawyers don't charge a contingent fee and an hourly fee at the same

time.

As I said before, most calls lawyers receive on medical malpractice

cases are turned down. That certainly is the case at my office. While

the calls often describe clear instances of medical negligence, the

amount of damages isn't sufficient to support a case which will require

expenditures in costs, which are greater than any possible recovery.

The other thing, is that when the case may be large enough, but the

degree of negligence is not plainly evident, often these lawyers will

spend a significant amount of money reviewing the case before they even

accept it. If they don't take the case, the potential client pays

nothing to the lawyers I know.

So, I personally am not quite certain where the scenario you are

discussing might come from, or if it even is possible. Its probably a

scenario disseminated by the OMA or some other national body. If such

a thing did occur in reality, it would have had to been because the

client chose to obtain an attorney through an hourly billing agreement

rather than a contingent fee agreement. I'd say that is a very poor

choice considering the amount of time that goes into these cases. They

are considered by many as being among the hardest cases and trials in

the legal profession, and require a great deal of skill and intellect.

I hope that helps.

DeShaw, D.C, J.D.

On Tuesday, October 19, 2004, at 09:15 AM, Larry Lubcke, DC, DABCO

wrote:

> , I would like to thank you for taking the time to write your

> rather lengthy post with regard to measure 35.  I agree that measure

> 35 is not inOregoncitizens best interest.  I however would like to

> pose a question to you with regard to malpractice cases..  In speaking

> with many different physicians, it is a common opinion that an

> attorney will take a marginal malpractice action in an attempt to run

> up billable hours ($10-$20,000) via discovery and depositions and then

> offer a settlement that is less than the cost of going to trial. This

> then nets a tidy sum for the attorney and a small pittance for their

> client.  Do you feel that this perception incorrect?

>

> Larry Lubcke DC, DABCO

>

>  

>

>  

>

> OT: Measure 35 / Medical Malpractice Caps

>

>  

>

> Dear Doctors:

>

> With ballots now on their way toOregon voters, I thought I would

> provide you some actual comments from the insurance industry about how

> caps, on recovery for people who have been the victims of medical

> negligence, will affect Oregon doctors and malpractice premiums.

> Before I do so, however, I want to set the stage for the malpractice

> issue, how it affects the health care field and how it affects the US

> public. In the interest of full disclosure, I presently have no

> medical malpractice cases, and have not accepted one in three years.

> What this is about for me, is an issue of public safety.

>

> As you know, dependent upon the study you review, between 95,000 and

> 300,000 US citizens per year die purely from medical negligence. It is

> the fourth leading killer in the US. These numbers do not include

> numbers for the people who have died from drug reactions, or the

> number maimed by medical negligence. The only deterrent to this

> negligence is the financial one raised by lawsuits. While we would

> like to think that MDs could eradicate the problem on their own, some

> recent statistics show that approximately 5% of the medical profession

> causes nearly 50% of the malpractice claims, and that injuries and

> death from medical negligence is going up not down.

>

> The reality is that lawsuits on medical negligence have decreased in

> the past few years, not increased as the insurance industry and

> Bush would like you to think. Lawyers (including myself) refuse to

> take even horrific cases of medical negligence because the likelihood

> of recovery is so low, and the costs of pursuing a case are already so

> high. Acceptance of a case can hinge on very small points (regardless

> of the horrific outcome), and in my experience malpractice lawyers

> will turn away cases unless there is blatant negligence on the part of

> the physician. The average out of pocket expenses for a lawyer on a

> medical malpractice case exceed $100,000, and so none of these cases

> are taken lightly, or filed on a whim. They are thoroughly

> investigated, typically by a panel of doctors prior to pursuing the

> case. The chance of success, even in a valid case, is extremely small.

> And, hopefully we can agree that no one is asking for a limb to be

> accidentally amputated in hopes of getting a " jackpot " verdict. That

> is a fallacy that unfortunately a large percentage of the population

> is willing to accept. The reality is that due to the huge financial

> investment necessary from the lawyer on a case, caps on a lawyer's

> recovery will essentially eliminate any malpractice cases from being

> taken in Oregon. The result will be that there will be no more

> financial disincentive for MDs to avoid mistakes.

>

> The most recent lie, that many MDs have also accepted, is that

> malpractice rates have gone up due to malpractice lawsuits. That is

> incorrect. The increase in premiums is because insurers were using

> investments to keep premiums artificially low in the 1990s so that

> they could gain market share. When they lost loads of money in bad

> investments in the late 1990s, they decided to recoup those losses by

> raising premiums exponentially. At the same time, they blamed

> malpractice litigation for the change, and while a large segment of

> the population get fired up to put caps on verdicts, the insurers have

> been laughing and collecting the largest profits in history.

>

> In fact, there is no difference in premiums in states where there

> already are caps on " pain and suffering, " because there is no relation

> between malpractice claims in a state, and the malpractice rates. Even

> if Measure 35 passes, it isn't going to make a change in Oregon

> malpractice premiums, or alter the effect they have on the medical

> profession. This is confirmed in an article called " Study Finds No

> Link Between Tort Reforms and Insurance Rates, " Liability Week, July

> 19, 1999.

>

> Now, lets take a look at what the malpractice insurers are really

> saying about how caps on malpractice cases will NOT lower malpractice

> premiums.

>

> " We wouldn't tell you or anyone that the reason to pass tort reform

> would be to reduce insurance rates. "

>

> ~Sherman Joyce, President of the American Tort Reform Association, as

> quoted in " Study Finds No Link Between Tort Reforms and Insurance

> Rates, " Liability Week, July 19, 1999.

>

> " No responsible insurer can cut its rates after a [medical malpractice

> tort 'reform'] bill passes. "

>

> ~Bob White, President of First Professional Insurance Company, the

> largest medical malpractice insurer in Florida, talking about a

> proposed $250,000 cap in the January 29, 2003 Palm Beach Post.

>

> " One of the reasons the premiums won't go down is that even if

> noneconomic damages are capped, the losses for economic loss, medical

> expenses, for example, are still in this current environment

> escalating at, medical inflation is running in the double digits. I

> forget exactly what it was last year. So even if you were to cap

> noneconomic damages, the economic damages will still cause

> acceleration in the premiums. So it would not go down, I want to

> clarify if I misspoke and said I thought the premiums would go down. "

>

> ~Cliff Webster, representing the Washington State Medical Association

> & Chairman of the Washington Liability Reform Coalition, testifying

> before the Washington State Legislature, House Judiciary Committee,

> Feb. 21, 2003.

>

> " Insurers never promised that tort reform would achieve specific

> premium savings... "

>

> ~From a press release published March 13, 2002, by the American

> Insurance Association (AIA).

>

> " [M]any tort reform advocates do not contend that restricting

> litigation will lower insurance rates, and 'I've never said that in 30

> years.' "

>

> ~Victor Schwartz, General Counsel of the American Tort Reform

> Association, as paraphrased and quoted in " Tort Reforms Don't Cut

> Liability Rates, Study Says, " published in Business Insurance July 19,

> 1999.

>

> " Insurance was cheaper in the 1990s because insurance companies knew

> that they could take a doctor's premium and invest it, and $50,000

> would be worth $200,000 five years later when the claim came in. An

> insurance company today can't do that. "

>

> ~Victor Schwartz, general counsel to the American Tort Reform

> Association, " Dose of Legality, " Honolulu Star-Bulletin, April 20,

> 2003.

>

> " I don't like to hear insurance-company executives say it's the tort

> system - it's self inflicted. "

>

> ~ J. Zuk, chief executive of Scpie Holdings Inc., a leading

> malpractice insurer in California, Wall Street Journal, June 24, 2002.

>

>

> The bottom line is: A Yes vote for Measure 35 is a vote for insurance

> company profits over the safety ofOregoncitizens.

>

> I hope that when patients ask you about the real issues behind Measure

> 35, you will let them know that it is a measure to increase insurance

> company profits, not something that will help doctors, or Oregonians.

> I ask that you vote No on Measure 35.

>

> Respectfully,

>

> DeShaw, D.C., J.D.

>

[Guest guest]

I agree with . I've talked to a number of potential clients about med mal cases and turn virtually all of them down either because the damages are not significant enough to get the client anything, or because it is not clear whether there was negligence or simply a bad result of the procedure. When I worked for a couple Portland lawyers who had been in practice for 20-30 years each, I did case screening for them. Of the several hundred phone calls about med mal, none were taken for the same reasons. During that same time period one was taken on referral from another attorney. Many of those people start looking for attorneys because they are pissed at the provider for either brushing them off or refusing to acknowledge that they made a mistake.

If anything, the economics of med mal cases help to keep them from being brought. Most ordinary people do not have $10,000.00-20,000.00 to pay experts for testimony, which means the risk of losing that kind of money is on the attorney. The attorneys who do medical malpractice cases are generally pretty conservative about taking them because of that risk of loss. Nobody has that much money to spend on cases which are unlikely to win, and few have that much money to spend even on cases which are likely to win.

Chris

T. Hill, PC1020 SW Street, Suite 300Portland, OR 97205Tel: (503) 227-4330Fax: (503) 227-3230chill@...www.cthlaw.com

OT: Measure 35 / Medical Malpractice Caps Dear Doctors:With ballots now on their way toOregon voters, I thought I would provide you some actual comments from the insurance industry about how caps, on recovery for people who have been the victims of medical negligence, will affect Oregon doctors and malpractice premiums. Before I do so, however, I want to set the stage for the malpractice issue, how it affects the health care field and how it affects the US public. In the interest of full disclosure, I presently have no medical malpractice cases, and have not accepted one in three years. What this is about for me, is an issue of public safety.As you know, dependent upon the study you review, between 95,000 and 300,000 US citizens per year die purely from medical negligence. It is the fourth leading killer in the US. These numbers do not include numbers for the people who have died from drug reactions, or the number maimed by medical negligence. The only deterrent to this negligence is the financial one raised by lawsuits. While we would like to think that MDs could eradicate the problem on their own, some recent statistics show that approximately 5% of the medical profession causes nearly 50% of the malpractice claims, and that injuries and death from medical negligence is going up not down.The reality is that lawsuits on medical negligence have decreased in the past few years, not increased as the insurance industry and Bush would like you to think. Lawyers (including myself) refuse to take even horrific cases of medical negligence because the likelihood of recovery is so low, and the costs of pursuing a case are already so high. Acceptance of a case can hinge on very small points (regardless of the horrific outcome), and in my experience malpractice lawyers will turn away cases unless there is blatant negligence on the part of the physician. The average out of pocket expenses for a lawyer on a medical malpractice case exceed $100,000, and so none of these cases are taken lightly, or filed on a whim. They are thoroughly investigated, typically by a panel of doctors prior to pursuing the case. The chance of success, even in a valid case, is extremely small. And, hopefully we can agree that no one is asking for a limb to be accidentally amputated in hopes of getting a "jackpot" verdict. That is a fallacy that unfortunately a large percentage of the population is willing to accept. The reality is that due to the huge financial investment necessary from the lawyer on a case, caps on a lawyer's recovery will essentially eliminate any malpractice cases from being taken in Oregon. The result will be that there will be no more financial disincentive for MDs to avoid mistakes.The most recent lie, that many MDs have also accepted, is that malpractice rates have gone up due to malpractice lawsuits. That is incorrect. The increase in premiums is because insurers were using investments to keep premiums artificially low in the 1990s so that they could gain market share. When they lost loads of money in bad investments in the late 1990s, they decided to recoup those losses by raising premiums exponentially. At the same time, they blamed malpractice litigation for the change, and while a large segment of the population get fired up to put caps on verdicts, the insurers have been laughing and collecting the largest profits in history.In fact, there is no difference in premiums in states where there already are caps on "pain and suffering," because there is no relation between malpractice claims in a state, and the malpractice rates. Even if Measure 35 passes, it isn't going to make a change in Oregon malpractice premiums, or alter the effect they have on the medical profession. This is confirmed in an article called "Study Finds No Link Between Tort Reforms and Insurance Rates," Liability Week, July 19, 1999.Now, lets take a look at what the malpractice insurers are really saying about how caps on malpractice cases will NOT lower malpractice premiums."We wouldn't tell you or anyone that the reason to pass tort reform would be to reduce insurance rates."~Sherman Joyce, President of the American Tort Reform Association, as quoted in "Study Finds No Link Between Tort Reforms and Insurance Rates," Liability Week, July 19, 1999."No responsible insurer can cut its rates after a [medical malpractice tort 'reform'] bill passes."~Bob White, President of First Professional Insurance Company, the largest medical malpractice insurer in Florida, talking about a proposed $250,000 cap in the January 29, 2003 Palm Beach Post."One of the reasons the premiums won't go down is that even if noneconomic damages are capped, the losses for economic loss, medical expenses, for example, are still in this current environment escalating at, medical inflation is running in the double digits. I forget exactly what it was last year. So even if you were to cap noneconomic damages, the economic damages will still cause acceleration in the premiums. So it would not go down, I want to clarify if I misspoke and said I thought the premiums would go down."~Cliff Webster, representing the Washington State Medical Association & Chairman of the Washington Liability Reform Coalition, testifying before the Washington State Legislature, House Judiciary Committee, Feb. 21, 2003."Insurers never promised that tort reform would achieve specific premium savings..."~From a press release published March 13, 2002, by the American Insurance Association (AIA)."[M]any tort reform advocates do not contend that restricting litigation will lower insurance rates, and 'I've never said that in 30 years.'"~Victor Schwartz, General Counsel of the American Tort Reform Association, as paraphrased and quoted in "Tort Reforms Don't Cut Liability Rates, Study Says," published in Business Insurance July 19, 1999."Insurance was cheaper in the 1990s because insurance companies knew that they could take a doctor's premium and invest it, and $50,000 would be worth $200,000 five years later when the claim came in. An insurance company today can't do that."~Victor Schwartz, general counsel to the American Tort Reform Association, "Dose of Legality," Honolulu Star-Bulletin, April 20, 2003."I don't like to hear insurance-company executives say it's the tort system - it's self inflicted."~ J. Zuk, chief executive of Scpie Holdings Inc., a leading malpractice insurer in California, Wall Street Journal, June 24, 2002.The bottom line is: A Yes vote for Measure 35 is a vote for insurance company profits over the safety ofOregoncitizens.I hope that when patients ask you about the real issues behind Measure 35, you will let them know that it is a measure to increase insurance company profits, not something that will help doctors, or Oregonians. I ask that you vote No on Measure 35.Respectfully, DeShaw, D.C., J.D.

[Guest guest]

For some reason I am not getting all of my emails from this group but I did get Dr. Lubcke's note and the reply of Dr. DeShaw. I will chime in here and state that is correct in that these types of cases are usually on a contingent fee basis but also take it one step clearer in that the plaintiff's lawyer before deciding to take a case will spend their own money investigating it, with the understanding that the client may never be able to pay for that investigation. Drs.' charge a lot of money for their time and few people can afford those costs. This is understood clearly by the lawyer. Perhaps Dr. Lubcke is talking about defense lawyers who run up their own billable hours with endless paperwork and legal wrangling when they know darn well that the case could and should be settled ASAP ? Defense lawyers get paid no matter what, win or lose, and they get paid very, very well.

I spoke up at the last Family Practice Review I attended when in one session Tort reform was discussed. I told the Drs. that if they they need to be willing to review cases and then if they feel that the Dr. was negligent they need to tell the defense lawyer, in no uncertain terms, to get the case settled sooner rather than later. This would cut costs, for all sides, tremendously.

One other thing of interest, is that at the same ' Review' the president of the Oregon Association of Family Practitioners was rallying the troops for Tort reform and contributions during the lunch time talk. This very same person later gave a talk on

' Alternative' medicine and taught us all how to 'breathe' to relieve stress and therefore, disease. I again spoke up and said that if doctors turned to this type of view of health and disease then perhaps the malpractice 'crisis' that she talked of would be diminished. It was obvious her blood pressure rose, along with the color of her cheeks. Her furious retort was the same old diatribe about protecting doctors who practice OB and other high risk specialties, meanwhile totally neglecting to mention the scores of other types of medical negligence that goes on daily.

My own son is in medical school, and I worry about his future. I am not insensitive to the plight of doctors and the cost of insurance. There are ways however to make things better ie risk sharing, basic coverage then an 'umbrella' policy but the doctors flat out refuse to consider this. Time for them to get their thoughts straight and come to the table to find ways to diminish medical negligence yet take care of the injured.

sharron fuchs dc

OT: Measure 35 / Medical Malpractice Caps

Dear Doctors:

With ballots now on their way toOregon voters, I thought I would provide you some actual comments from the insurance industry about how caps, on recovery for people who have been the victims of medical negligence, will affect Oregon doctors and malpractice premiums. Before I do so, however, I want to set the stage for the malpractice issue, how it affects the health care field and how it affects the US public. In the interest of full disclosure, I presently have no medical malpractice cases, and have not accepted one in three years. What this is about for me, is an issue of public safety.

As you know, dependent upon the study you review, between 95,000 and 300,000 US citizens per year die purely from medical negligence. It is the fourth leading killer in the US. These numbers do not include numbers for the people who have died from drug reactions, or the number maimed by medical negligence. The only deterrent to this negligence is the financial one raised by lawsuits. While we would like to think that MDs could eradicate the problem on their own, some recent statistics show that approximately 5% of the medical profession causes nearly 50% of the malpractice claims, and that injuries and death from medical negligence is going up not down.

The reality is that lawsuits on medical negligence have decreased in the past few years, not increased as the insurance industry and Bush would like you to think. Lawyers (including myself) refuse to take even horrific cases of medical negligence because the likelihood of recovery is so low, and the costs of pursuing a case are already so high. Acceptance of a case can hinge on very small points (regardless of the horrific outcome), and in my experience malpractice lawyers will turn away cases unless there is blatant negligence on the part of the physician. The average out of pocket expenses for a lawyer on a medical malpractice case exceed $100,000, and so none of these cases are taken lightly, or filed on a whim. They are thoroughly investigated, typically by a panel of doctors prior to pursuing the case. The chance of success, even in a valid case, is extremely small. And, hopefully we can agree that no one is asking for a limb to be accidentally amputated in hopes of getting a "jackpot" verdict. That is a fallacy that unfortunately a large percentage of the population is willing to accept. The reality is that due to the huge financial investment necessary from the lawyer on a case, caps on a lawyer's recovery will essentially eliminate any malpractice cases from being taken in Oregon. The result will be that there will be no more financial disincentive for MDs to avoid mistakes.

The most recent lie, that many MDs have also accepted, is that malpractice rates have gone up due to malpractice lawsuits. That is incorrect. The increase in premiums is because insurers were using investments to keep premiums artificially low in the 1990s so that they could gain market share. When they lost loads of money in bad investments in the late 1990s, they decided to recoup those losses by raising premiums exponentially. At the same time, they blamed malpractice litigation for the change, and while a large segment of the population get fired up to put caps on verdicts, the insurers have been laughing and collecting the largest profits in history.

In fact, there is no difference in premiums in states where there already are caps on "pain and suffering," because there is no relation between malpractice claims in a state, and the malpractice rates. Even if Measure 35 passes, it isn't going to make a change in Oregon malpractice premiums, or alter the effect they have on the medical profession. This is confirmed in an article called "Study Finds No Link Between Tort Reforms and Insurance Rates," Liability Week, July 19, 1999.

Now, lets take a look at what the malpractice insurers are really saying about how caps on malpractice cases will NOT lower malpractice premiums.

"We wouldn't tell you or anyone that the reason to pass tort reform would be to reduce insurance rates."

~Sherman Joyce, President of the American Tort Reform Association, as quoted in "Study Finds No Link Between Tort Reforms and Insurance Rates," Liability Week, July 19, 1999.

"No responsible insurer can cut its rates after a [medical malpractice tort 'reform'] bill passes."

~Bob White, President of First Professional Insurance Company, the largest medical malpractice insurer in Florida, talking about a proposed $250,000 cap in the January 29, 2003 Palm Beach Post.

"One of the reasons the premiums won't go down is that even if noneconomic damages are capped, the losses for economic loss, medical expenses, for example, are still in this current environment escalating at, medical inflation is running in the double digits. I forget exactly what it was last year. So even if you were to cap noneconomic damages, the economic damages will still cause acceleration in the premiums. So it would not go down, I want to clarify if I misspoke and said I thought the premiums would go down."

~Cliff Webster, representing the Washington State Medical Association & Chairman of the Washington Liability Reform Coalition, testifying before the Washington State Legislature, House Judiciary Committee, Feb. 21, 2003.

"Insurers never promised that tort reform would achieve specific premium savings..."

~From a press release published March 13, 2002, by the American Insurance Association (AIA).

"[M]any tort reform advocates do not contend that restricting litigation will lower insurance rates, and 'I've never said that in 30 years.'"

~Victor Schwartz, General Counsel of the American Tort Reform Association, as paraphrased and quoted in "Tort Reforms Don't Cut Liability Rates, Study Says," published in Business Insurance July 19, 1999.

"Insurance was cheaper in the 1990s because insurance companies knew that they could take a doctor's premium and invest it, and $50,000 would be worth $200,000 five years later when the claim came in. An insurance company today can't do that."

~Victor Schwartz, general counsel to the American Tort Reform Association, "Dose of Legality," Honolulu Star-Bulletin, April 20, 2003.

"I don't like to hear insurance-company executives say it's the tort system - it's self inflicted."

~ J. Zuk, chief executive of Scpie Holdings Inc., a leading malpractice insurer in California, Wall Street Journal, June 24, 2002.

The bottom line is: A Yes vote for Measure 35 is a vote for insurance company profits over the safety ofOregoncitizens.

I hope that when patients ask you about the real issues behind Measure 35, you will let them know that it is a measure to increase insurance company profits, not something that will help doctors, or Oregonians. I ask that you vote No on Measure 35.

Respectfully,

DeShaw, D.C., J.D.

[Guest guest]

Thank you for your response to this

question. My reference to billable hours was poorly stated. I was

referring to the number of hours the attorney had invested in the case and

therefore how and for what amount he would influence his client to settle the

case for. Having said this however, in context of your answer, this

clarification is irrelevant. I'm happy that this perception was

incorrect. This is a good example of why this forum for communication is

valuable, thank you Dr. Friedman for hosting this forum.

Larry Lubcke DC, DABCO

OT: Measure

35 / Medical Malpractice Caps

Dear Doctors:

With ballots now on their way toOregon voters, I thought I would

provide you some actual comments from the insurance industry about how caps, on

recovery for people who have been the victims of medical negligence, will

affect Oregon doctors and malpractice premiums. Before I do so, however, I want

to set the stage for the malpractice issue, how it affects the health care

field and how it affects the US public. In the interest of full disclosure, I

presently have no medical malpractice cases, and have not accepted one in three

years. What this is about for me, is an issue of public safety.

As you know, dependent upon the study you review, between 95,000 and 300,000 US

citizens per year die purely from medical negligence. It is the fourth leading

killer in the US. These numbers do not include numbers for the people who have

died from drug reactions, or the number maimed by medical negligence. The only

deterrent to this negligence is the financial one raised by lawsuits. While we

would like to think that MDs could eradicate the problem on their own, some

recent statistics show that approximately 5% of the medical profession causes

nearly 50% of the malpractice claims, and that injuries and death from medical

negligence is going up not down.

The reality is that lawsuits on medical negligence have decreased in the past

few years, not increased as the insurance industry and Bush would like

you to think. Lawyers (including myself) refuse to take even horrific cases of

medical negligence because the likelihood of recovery is so low, and the costs

of pursuing a case are already so high. Acceptance of a case can hinge on very

small points (regardless of the horrific outcome), and in my experience

malpractice lawyers will turn away cases unless there is blatant negligence on

the part of the physician. The average out of pocket expenses for a lawyer on a

medical malpractice case exceed $100,000, and so none of these cases are taken

lightly, or filed on a whim. They are thoroughly investigated, typically by a

panel of doctors prior to pursuing the case. The chance of success, even in a

valid case, is extremely small. And, hopefully we can agree that no one is

asking for a limb to be accidentally amputated in hopes of getting a

" jackpot " verdict. That is a fallacy that unfortunately a large

percentage of the population is willing to accept. The reality is that due to

the huge financial investment necessary from the lawyer on a case, caps on a

lawyer's recovery will essentially eliminate any malpractice cases from being

taken in Oregon. The result will be that there will be no more financial

disincentive for MDs to avoid mistakes.

The most recent lie, that many MDs have also accepted, is that malpractice

rates have gone up due to malpractice lawsuits. That is incorrect. The increase

in premiums is because insurers were using investments to keep premiums

artificially low in the 1990s so that they could gain market share. When they

lost loads of money in bad investments in the late 1990s, they decided to

recoup those losses by raising premiums exponentially. At the same time, they

blamed malpractice litigation for the change, and while a large segment of the

population get fired up to put caps on verdicts, the insurers have been

laughing and collecting the largest profits in history.

In fact, there is no difference in premiums in states where there already are

caps on " pain and suffering, " because there is no relation between

malpractice claims in a state, and the malpractice rates. Even if Measure 35

passes, it isn't going to make a change in Oregon malpractice premiums, or

alter the effect they have on the medical profession. This is confirmed in an

article called " Study Finds No Link Between Tort Reforms and Insurance

Rates, " Liability Week, July 19, 1999.

Now, lets take a look at what the malpractice insurers are really saying about

how caps on malpractice cases will NOT lower malpractice premiums.

" We wouldn't tell you or anyone that the

reason to pass tort reform would be to reduce insurance rates. "

~Sherman Joyce, President of the American Tort Reform Association,

as quoted in " Study Finds No Link Between Tort Reforms and Insurance

Rates, " Liability Week, July 19, 1999.

" No responsible insurer can cut its

rates after a [medical malpractice tort 'reform'] bill passes. "

~Bob White, President of First Professional Insurance Company, the

largest medical malpractice insurer in Florida, talking about a proposed

$250,000 cap in the January 29, 2003 Palm Beach Post.

" One of the reasons the premiums won't

go down is that even if noneconomic damages are capped, the losses for economic

loss, medical expenses, for example, are still in this current environment

escalating at, medical inflation is running in the double digits. I forget

exactly what it was last year. So even if you were to cap noneconomic damages,

the economic damages will still cause acceleration in the premiums. So it would

not go down, I want to clarify if I misspoke and said I thought the premiums

would go down. "

~Cliff Webster, representing the Washington State Medical

Association & Chairman of the Washington Liability Reform Coalition,

testifying before the Washington State Legislature, House Judiciary Committee,

Feb. 21, 2003.

" Insurers never promised that tort

reform would achieve specific premium savings... "

~From a press release published March 13, 2002, by the American

Insurance Association (AIA).

" [M]any tort reform advocates do not

contend that restricting litigation will lower insurance rates, and 'I've never

said that in 30 years.' "

~Victor Schwartz, General Counsel of the American Tort Reform

Association, as paraphrased and quoted in " Tort Reforms Don't Cut

Liability Rates, Study Says, " published in Business Insurance July 19,

1999.

" Insurance was cheaper in the 1990s

because insurance companies knew that they could take a doctor's premium and

invest it, and $50,000 would be worth $200,000 five years later when the claim

came in. An insurance company today can't do that. "

~Victor Schwartz, general counsel to the American Tort Reform

Association, " Dose of Legality, " Honolulu Star-Bulletin, April 20,

2003.

" I don't like to hear insurance-company

executives say it's the tort system - it's self inflicted. "

~ J. Zuk, chief executive of Scpie Holdings Inc., a leading

malpractice insurer in California, Wall Street Journal, June 24, 2002.

The bottom line is: A Yes vote for Measure 35

is a vote for insurance company profits over the safety ofOregoncitizens.

I hope that when patients ask you about the real issues behind

Measure 35, you will let them know that it is a measure to increase insurance

company profits, not something that will help doctors, or Oregonians. I ask

that you vote No on Measure 35.

Respectfully,

DeShaw, D.C., J.D.