When Mike Kreidler was an optometrist in Olympia, Wash., he railed against
trial lawyers. He believed that aggressive trial lawyers were the reason he
faced rising insurance premiums.
Dr. Kreidler, now in his second term as Washington State's insurance
commissioner, has changed his mind. He has decided that the problem is not the
lawyers - although they have contributed - but also the insurance companies.
"I came full circle," he said. "I started out with a strong bias against
trial lawyers and lawsuits, and now I see the trade-off and I have both sides,
the trial lawyers and the insurance companies, mad at me."
The high price of medical malpractice insurance is a notoriously nebulous and
highly politicized subject. Insurers and doctors contend that the insurance is
more expensive because of a surge in jury awards and settlements. Consumer
advocates and their political allies assert that insurers have raised rates
because they can, arguing that insurers' claims have slowed significantly while
premiums have shot up.
A study to be released today by the Center for Justice and Democracy, a
consumer advocacy group in New York, may add fuel to that debate. The study,
compiled from regulatory filings by insurers to state regulators, finds that net
claims for medical malpractice paid by 15 leading insurance companies have
remained flat over the last five years, while net premiums have surged 120
percent.
From 2000 to 2004, the increase in premiums collected by the leading 15
medical malpractice insurance companies was 21 times the increase in the claims
they paid, according to the study. (The net totals in the study are calculated
after accounting for reinsurance.)
Of the 15 companies examined, 9 are mutual insurers owned by their
policyholders, 3 have publicly traded stock but are part of larger conglomerates
and 3 are publicly traded and focus primarily on medical malpractice. The stock
prices of those three companies have each risen more than 100 percent since May
2002.
"In recent years, medical malpractice hasn't been unprofitable but it's been
phenomenally profitable," said Jay Angoff, the former state insurance
commissioner of Missouri and a consultant on the study.
Insurance industry officials not only disagree with Mr. Angoff and the study,
they discredit the methodology. They say that it is unfair to compare the
premiums that insurance companies charge with claims paid, because it often
takes 8 to 10 years for the claims to materialize, so companies have to set
aside extra reserves.
"It's a meaningless comparison that no respectable actuary would consider,"
said Lawrence Smarr, president of the Physicians Insurers Association of
America, the trade group representing physician-owned insurance companies.
Industry officials instead look at incurred losses, which include what
insurance companies pay in claims as well as what they set aside for reserves to
pay for future claims. The study, for its part, emphasizes that incurred losses
are not payments the insurer has made but rather are estimates of claims.
The reason malpractice insurance premiums are on the rise, Mr. Smarr says, is
claim costs have risen as juries have awarded higher awards to plaintiffs, and
insurance companies have used those claims as the justification for settling
more cases.
"The real problem is claim severity," he said. "It means that juries are
awarding higher amounts and jury verdicts drive the potential cost of the claim
so that makes settlements rise."
According to the association's data, collected on a voluntary basis by its
membership, 70 percent of malpractice cases closed in 2003 were dismissed, 24
percent were settled, 5 percent were tried and found in favor of the defendant
and 0.8 percent were settled in favor of the plaintiff.
But it is that 0.8 percent that drives the costs, according to advocates for
a national limit on what juries can award in medical malpractice cases. The
uncertainty and the emotional circumstances of claims drives more settlements,
regardless of the merit of the cases.
"We have a proven record of the fact that the premiums will come down when
you get strong liability reform - that's why we're pushing caps on noneconomic
damages," said Edward Hill, the president of the American Medical Association.
Insurance companies set rates, collect premiums and then estimate how much
they will need to pay in claims. While they wait to pay those claims, they
invest the money. A variety of reasons, including poor investment performance
and rising reinsurance costs have contributed to rising costs.
Insurers look at incurred losses, which include money set aside for future
reserves, as well as ratios that include the administrative and legal cost of
underwriting new business. The most commonly cited profitability measure is the
ratio of all the costs of doing business - underwriting, legal and
administrative - to the premiums earned.
Mr. Angoff contests the use of the combined ratio, which is based on
"overwhelming estimates." He also examined the incurred-loss ratio for the
leading 15 insurers and found that it fell by almost 25 percent from 2000 to
2004 to 51.4 percent, meaning that the companies took in almost twice as much in
premiums during that time as they paid out in claims.
"The argument that they have to raise rates because their incurred losses are
going up, I don't buy it," Mr. Angoff said, "because incurred losses are
estimates and the estimate of future losses can only rationally be built on
their paid losses."
The numbers in the study, said the Connecticut attorney general, Richard
Blumenthal, "cast a completely different picture than the public or many public
officials have assumed."
"They have the potential to alter the debate fundamentally from seeming to
cast the rapacious personal injury lawyers as the complete culprits and the
insurers as innocent bystanders with doctors as victims to the insurers as
equally responsible, if not more so," Mr. Blumenthal said.
Dr. Kreidler of Washington State is also not convinced that runaway juries
are the sole cause for large rate increases. "Focusing exclusively on capping
noneconomic damages will have a marginal effect on premiums and it will not have
a pronounced dramatic impact," he said. "I think we should be doing something to
make the tort system cheaper and making medicine safer."
Some insurance executives agree. "Malpractice insurance has changed how
medicine is practiced," said William R. Berkley, chairman and chief executive of
the W. R. Berkley Corporation, which underwrites particularly risky malpractice
areas. "Part of it is good for patients; doctors are more careful. The problem
is the cost."