By Catherine D. Bertram, Esquire and Salvatore J. Zambri, Esquire
In recent years, the insurance companies in New York have claimed that there was a crisis in medical malpractice claims which was essentially putting doctors and hospitals out of business. Were the claims of the insurance companies true? The answer, according to the federal government claims data, is a resounding "no".
According to a comprehensive report based on the federal data, written by Roberto LoBianco and Bill Mahoney of the N.Y. Public Interest Research Group and Arthur Levin of the Center for Medical Consumers. When you review the actual data from paid medical malpractice claims it is clear that New York’s malpractice system has been remarkable consistent and stable. In fact, the New York medical malpractice settlement figures since 2006 show that the payouts in these cases have declined since 2006. Despite claims that doctors were fleeing from New York, the data actually shows that the number of active physicians increased by 20% from 1995 to 2008, even though the state’s population grew a mere 6%.
The National Practitioner Data Bank (NPDB) was created by federal law and is managed by the U.S. Department of Health and Human Services. All medical malpractice insurers are required to report their payments to this data base. The NPDB public use data file is the only publicly-available comprehensive malpractice database in the country since it includes payments from all insurers across the country. While the NPDB is prohibited from publically releasing the names of the individual doctors who have paid out on malpractice claims, it does release aggregated information about those payments.
According to the report, the aggregate amount paid for malpractice payouts in New York dropped by 10% between 2006 and 2008. In addition, the frequency of malpractice payments from 1995 through 2008 also remained relatively stable, even though there are 20% more physicians practicing in New York. Interestingly, the report also notes that from 1992 through 2008 the number of doctors who made more than 3 payments in malpractice cases was only 6.6% of the physicians in the state, yet these same doctors were responsible for 50% of all the payments made during that period.
The report has several concrete suggestions, including a recommendation that consumers demand that insurance companies allow independent actuaries to conduct forensic reviews of their premium setting practices so that the tax payers, doctors and politicians can truly have the facts before laws are created that limit the rights of injured patients and before doctors are forced to pay excess premiums. In addition, the state should proactively review the practice history of all doctors who have more than 3 malpractice payouts in the past 10 years. Finally, future discussions about how to reduce doctors’ insurance rates should focus on patient safety and preventing injuries to patients as the goal since that is clearly the best way to reduce lawsuits.