Florida's Supreme Court will be hearing arguments on February 9, 2012 in the case of Estate of McCall v. U.S.,  in which the U.S. Eleventh Circuit Court of Appeals has certified a question of law to the state supreme court over whether the state's cap on nonecomic loss in medical malpractice cases is constitutional. The plaintiffs/appellants in that case are represented by the Center for Constitutional Litigation (CCL), a Washington public interest law firm frequently hired by plaintiffs' trial counsel to assert constitutional challenges to laws that impede access to the courts and in appeals.

As part of its appeal to the Florida Supreme Court in McCall, CCL cited two studies which should be of interest to our readers. In one, the United States General Accounting Office found that the physician workforces in various states are increasing despite claims that doctors are fleeing certain states due to increasing insurance premiums and unlimited tort exposure. See U.S. General Accounting Office, No. GAO-04-124, Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted (Oct. 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf .

The second study of malpractice claims experience in seven states undertaken by the U,S. Department of Justice, Dep't of Justice, Bureau of Justice Statistics, NCJ 216339, Medical Malpractice Insurance Claims in Seven States 2000-2004 (Mar. 2007), at 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mmicss04.pdf made the following findings:

• Between 12% and 38% of malpractice cases are closed without any payout
• The majority of malpractice cases are brought against physicians or surgeons
• Most injuries occur at hospital inpatient facilities
• Females made up more than half of insurance claimants
• Few malpractice cases result in payouts of $1 million or more
• About 95% of claims settle before trial
• Insurance payouts increased as claims moved closer to trial
• Medical malpractice insurance payouts have increased
• Medical malpractice cases closed after trial cost more than claims settled before trial
• On average, 15-24 months elapsed before claims were reported to insurance carriers

Some of the findings in the second study are self-evident but the fact remains that insurance company and interest group claims of a malpractice crisis in the United States are not supported by the data.  Public policy is at the heart of legislative and common law pronoucements that expand and constrict our legal rights.  It's time for the lawmakers to start looking at the facts and not the propaganda espoused in the halls of our state and federal assemblies.  It's time for our elected representatives to start asking that insurance companies "show us the money" and stop hoarding it.   

Belsky, Weinberg & Horowitz is a full service Maryland law firm with practice groups in the areas of plaintiffs' personal injury, medical malpractice, workers' compensation, social security disability and bankruptcy. We supply this and other information on our website as educational materials to keep our readers abreast of developments in the law that we believe are important and that relate to the areas in which we practice. Keeping abreast of legal developments as they develop is an important responsibility our firm takes very seriously. We make every effort to report new cases and legal issues objectively, although opinions are at times expressed. Should you have any questions about the firm or any information on our website, please contact our office by clicking here or by calling (410) 234-0100.

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