More study needed, Judge Vollor says

Published 12:00 am Thursday, October 24, 2002

[10/24/02]The Legislature has failed to consider the actions of all parties affected by civil-liability changes in its current special session on the topic, Warren County Circuit Judge Frank Vollor said Wednesday.

“In addressing it, we’ve only looked at one side of the issue,” he told about a dozen people at a meeting of Triad, a group whose goal is to reduce the criminal victimization of older citizens.

“We’re not addressing the other issue. We’ve got to look at the insurance industry that’s driving rates,” he said, noting that insurance rates have historically risen in economic downturns like the current one.

Vollor’s comments tended to counter arguments advanced by pro-reform groups, including the U.S. Chamber of Commerce, that link rising insurance rates to measures like limits on jury awards of some types of damages that are now unlimited.

The chamber has been among the leaders in the campaign for change. A survey sponsored by it has ranked the state’s civil liability system last in the nation based on a number of factors, and it has claimed out-of-state businesses have been “denied their constitutional rights of due process” by the system.

“Delaware was voted by the U.S. Chamber to have the best business climate, and they don’t have tort reform there,” Vollor said. “California passed it, and (insurance) rates didn’t go down there.”

Rates for medical-malpractice insurance have risen sharply recently and many have blamed a rise in the incidence and cost of litigation. Vollor cited statistical and anecdotal evidence, however, that cast doubt on any direct link between the two.

Lawsuits are filed in only one in eight cases that could involve medical malpractice, he said a Harvard Medical School study showed. And in only one of six cases in which claims are filed are they filed against the right person, he said.

Of the lawsuits that are filed, 94 percent do not go to trial, including 40 percent in which no settlement is paid, he said, citing a study by the RAND think tank. And, of the 6 percent that do go to trial, less than 2 percent result in doctors’ being found liable for malpractice, he said the study showed.

Further, he said that in his 20-plus years of practicing law in Warren County he could only recall two medical-malpractice cases against doctors that had gone to trial.

“That doesn’t sound like a crisis to me,” he said.

While some in the media have urged Legislators to take faster action on civil-justice reform, Vollor said he was encouraged that legislators have taken more time to study the issue.

“I’ve found it rewarding that they are looking closely at it,” he said. “To me that’s encouraging. What this needs is a good hard look and not some quick-fix solution.”

Vollor expressed approval of some of the changes the Legislature has approved. Limiting where suits can be filed, reinstating a requirement that prospective complainants obtain or document attempts to obtain expert opinions before filing suits and requiring the state insurance commission to regularly report the number of doctors unable to secure malpractice insurance were two changes he said he thought were good.

“That’s a very good provision,” he said of the expert-opinion requirement. He also used that as an example of a civil-justice change made that, after a time, was reversed. “Years ago this had to be done anyway, but it was changed.”

He also outlined and explained other changes the Legislature has approved, including clarifying University Medical Center doctors’ status as state employees and thus limiting their liability, limiting the liability of doctors who prescribe federal Food and Drug Administration-approved drugs, shortening the time limit during which suits may be filed against nursing homes to two years, placing limits on joint liability in some cases and clarifying that hospital medical records are owned by hospitals.

Having passed measures aimed at controlling the cost of medical-malpratice claims, lawmakers are now considering broader civil-justice reforms as the special session continues.