Pursuing Tort Reform

May 5, 2003

Medical malpractice is a growing concern in this country. According to a 1999 study by the National Academy of Sciences, deaths due to medical errors are the 8th leading cause of death in the U.S. Jury awards for victims of medical malpractice have also been on the rise, although the number of medical malpractice cases in Connecticut has remained steady. At the same time, malpractice insurance rates for doctors have increased, as have doctor bills. We’ve seen the fallout in other parts of the country as Pennsylvania doctors went on strike a month ago, while New Jersey doctors did the same just a few weeks ago. Most troubling, however, is that all the involved parties are blaming each other for these increases.

This has not been lost on members of the Connecticut General Assembly, many of whom, myself included, have drafted legislation this session in hopes of improving the system. However, the bill I have proposed is the only one that suggests looking at the issue from a variety of perspectives to identify the problem. My biggest fear is passing a bill that in retrospect will look like a knee-jerk reaction to a problem whose solution was not exactly known.

Proposed Bill Number 229 would establish a tort reform task force to discuss and explore significant reforms with our current model. The task force would consist of a wide cross section of individuals in the industry including insurance companies, lawyers, a judge of the Superior Court, and persons representing the interests of medical care providers. Legislative members of the joint standing committees having cognizance over matters relating to courts, medical care and insurance would also sit on the task force.

I am hopeful such a committee would promote open dialogue and generate intelligent, far-reaching reform on a very complicated issue. I am hopeful we can address the rising cost of medical coverage and ensure high quality medical care, but before we pass any legislation, we have to be sure that we are actually addressing, not just reacting to, the problem, as it has been said that passing extreme laws often results in extreme injustice.

One proposal that has been looked at is establishing a cap on jury awards to victims of medical malpractice for his or her pain and suffering. Yet with such a measure come additional concerns.

Proponents of this theory may be overlooking what a significant step it is to place restrictions on a jury system that has been existence for hundreds of years. Furthermore, it seems curious that these restrictions would be so specific. Juries would still have the ultimate decision making power in criminal and civil trials, holding the authority to find people guilty of murder, rape, and other horrific crimes. Yet their powers would be curtailed in matters related to medical malpractice. It seems rather inconsistent not only to focus on one specific area of a jury’s authority, but to select medical malpractice awards as the one to target.

Deciding where the cap should stand would also be difficult. By definition, money for one’s pain and suffering is awarded so individuals can improve their quality of life for the remainder of their lives. But if the length of the time between the injury and one’s death differs for each person, why should the dollar amount awarded remain the same? More simply, how could one specific amount, say $250,000, be sufficient for someone at age 17 as well as someone at age 77 when one clearly has longer to live than the other?

Many of these bills also assume a direct cause and effect relationship, whether it be between rising jury awards and higher premiums or between the number of malpractice cases and doctors’ escalating insurance coverage. Although many of these issue are intertwined, only an objective study could determine whether or not one issue directly impacts another, and to what extent.

If any correlation is found, it may be between the escalating rates and the state of the economy. Clearly the sagging nature of our state’s finances could influence investment choices of the insurance companies and their gains, or in this case, losses, could certainly result in the companies raising their rates. The only way to determine this for sure is for insurance companies to open up their books and give outside parties an objective look inside.

As a lawyer I can understand their frustration at being blamed for rising rates, since their job is merely to work on behalf of their clients. It is the jury’s job to decide on the precise dollars amount to be awarded. Yet at the same time, being the son of a dedicated doctor, I empathize with the doctors’ plight, as well. With HMO’s paying less on claims and doctors’ insurance rates going up, one does not have to be an expert in business to realize that doctors’ ability to operate a successful practice is dwindling – which doesn’t bode well for healthcare in Connecticut.

Because there are so many unanswered questions regarding our current system, it is clear that tort reform is needed. My main intention in pursuing this particular legislation is simply to improve healthcare for everyone in Connecticut. An improved system would guarantee better care for patients, better working conditions for doctors, and less unfounded accusations among lawyers, doctors, and insurance companies. And that is something that everyone can agree on.

If you have questions or concerns on this are any other matter, please feel free to call me at my office, toll free at (800) 842-1421.

(Len Fasano represents the 34th State Senate District, which consists of North Haven, East Haven, and Wallingford.)