Monday, November 10, 2008

Tort Reform Revisited

There is an interesting article in the current issue of Arkansas Times (photo credit) on tort reform.  It is written by Doug Smith and titled “Fewer medical malpractice suits, but is that a good thing?”  It discusses Act 649 which was passed in 2003 as Arkansas’ attempt at tort reform.  I recall how insurance companied were fleeing Arkansas in the years prior to this Act being passed.  I have noticed that my malpractice cost has stabilized.

David Wroten, executive vice president of the Arkansas Medical Society, said there'd been a major change in the medical malpractice market in Arkansas, although, he said “We don't know all the reasons why.” Only a couple of companies were writing medical malpractice insurance before Act 649, he said, and now there are nine. Rates have declined “in some cases,” depending on factors such as the insured physician's specialty, but not across the board. The biggest physician malpractice carrier in Arkansas, by far, is State Volunteer Mutual Insurance Corp., with about 70 percent of the market. “Their premium increases have dropped to nothing, or 3 percent,” Wroten said. “Their claims have been cut nearly in half.” He said the reduction in claims was due in large part to Act 649's requirement that an “affidavit of merit” be filed within 30 days of the filing of a malpractice lawsuit. The affidavit, saying there's reasonable cause for the lawsuit, had to be signed by a physician practicing in the same specialty as the defendant. It was supposed to be a defense against frivolous lawsuits. Lawyers said there were already many such defenses.

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The affidavit requirement was invalidated by the Arkansas Supreme Court last year, the Court saying that the legislative requirement intruded on the Court's own constitutional authority to set the rules for filing lawsuits. Other provisions of Act 649 also are being challenged before the Supreme Court.

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