Excessive, frivolous litigation is placing an unbearable burden on American physicians and businesses. Skyrocketing medical malpractice insurance premiums have caused a medical liability crisis. Doctors are retiring, relocating to different states, and new physicians are shying away from entering certain specialties, including surgery and obstetrics/gynecology. The American Medical Association (AMA) notes that 20 states now suffer from this crisis. This means fewer doctors to perform surgeries or deliver babies in growing parts of this country. It also means increased costs passed onto patients, resulting in an increase in the number of people without healthcare insurance. The facts to support this crisis are indisputable.

The Physician Insurers Association of America notes that in 2003, 70 percent of medical liability claims were closed without any payment to the plaintiff; only 5.8 percent of claims went to a jury verdict and 86 percent of these claims resulted in verdicts for the defendant; and defendant physicians that prevailed at trial incurred average defense costs of nearly $88,000.

The AMA further notes that in 2001, only 15 percent of medical residents cited liability issues as a concern, but in 2003, 62 percent of residents stated liability issues were their top concern.

The U.S. Department of Health and Human Services (HHS) noted in a 2003 report that medical liability increases the annual amount the federal government must pay for Medicare, Medicaid, Veterans healthcare and other federal programs, by as much as $47.5 billion. HHS reports that reasonable limits on non-economic damages would reduce the amount of taxpayers money the federal government spends by nearly $51 billion. HHS estimates medical liability adds between $60 billion to $108 billion to the annual cost of healthcare.

The Joint Economic Committee in Congress notes that nearly $17 billion can be saved over 10 years by reducing the practice of defensive medicine, and 3.9 million uninsured Americans would be able to receive health insurance if a federal law addressing medical liability reform was passed.

The best way to solve this crisis is for federal legislation that places a cap on non-economic damages.

Such legislation would allow unlimited economic damages, which consist of past and future medical expenses, lost wages, etc.

A reasonable limit of $250,000 would be placed on non-economic damages (pain and suffering, mental anguish), but allow states the flexibility to have higher or lower caps.

Such bills have repeatedly passed the U.S. House but have stalled in the U.S. Senate due to obstructionist tactics taken by Democrats in collaboration with their strongest supporters –– trial lawyers.

With the president’s historic win and Republican consolidation in Congress, we may now have a unique opportunity to pass legislation that does away with the speculative approach of jury verdicts based on immeasurable factors and allows for redress of quantified injuries.

It is a mistake to think tort reform only affects physicians. Every year, according to the U.S. Chamber of Commerce’s Institute for Legal Reform, small businesses with less than $10 million in annual revenue generate 25 percent of America’s business revenues, but bear 68 percent of business tort costs, approximately $89 billion, and incur an average of $150,000 in tort liability costs.

Small businesses with less than $1 million in revenue generate 8 percent of Americas business revenues, but bear 26 percent of business tort costs, approximately $33 billion, and incur annual tort liability costs of $17,000. The Chamber estimates Americas annual total tort costs to be $233 billion. It is crucial that Congress enact litigation reform, such as reforming class actions and asbestos cases.

President George W. Bush said in a December radio address, “Excessive litigation is one of the biggest obstacles to economic growth. The tort system now costs America’s economy more than $230 billion a year.... Our litigious society deters job creation and consumes billions of dollars that could be better spent on investment and expansion. Frivolous lawsuits put American workers at a competitive disadvantage in the global economy and have a devastating impact on the medical community.”

Mr. President, I couldn’t agree with you more. But will Senate Democrats and trial lawyers work with you to help the American people or will they continue to obstruct passage of legislation that fundamentally reforms our tort system? Only time will tell.

(The writer is Press Secretary for the Indian American Republican Council (IARC).