Many industries are complaining about the rapid rise of insurance premiums in recent years guided by the belief that placing caps on judgments would solve all of their problems. It will not.

A study released last month by an independent insurance ratings company confirms what consumer advocates have been saying all along: damage caps do not reduce medical malpractice premiums.

Weiss Ratings, Inc., the nation’s leading independent provider of ratings and analyses of financial services companies, found caps on non-economic damages have failed to prevent sharp increases in medical malpractice premiums.

The Weiss study found that 19 states with caps still suffered a 48 percent jump in their premiums. Only two of the states experienced flat or declining medical malpractice premiums. The study also found 32 states without caps experienced rate increases that were slower, rising only by 35.9 percent.

The study pointed to many other factors driving up insurance premiums: increased medical costs, lost investment income for insurers, under-reserving by insurers along with a general decline in medical malpractice insurers. Weiss recommended more prudent underwriting practices and self-policing by the medical profession to reduce insurance premiums for doctors.

“Tort reform has failed to address the problem of surging medical malpractice premiums, despite the fact that insurers have benefited from a slowdown in the growth of claims,” said Martin Weiss, chairman of Weiss Ratings, Inc. “The escalating medical malpractice crisis will not be resolved until the industry and regulators address the other, apparently more powerful, factors driving premiums higher.”

In Olympia, pressure from the insurance and business lobby to adopt severe and unconstitutional proposals has been immense — despite all of the evidence against it.

If you don’t have history and the evidence on your side, you don’t win votes. The Washington State Supreme Court overturned restrictive damage caps in 1989 under Sofie v. Fibreboard. When the restrictions were in place, no dramatic drop in insurance premiums resulted for any insurance policyholder.

State Rep. Pat Lantz, D-26, chair of the House Judiciary Committee, stood firm with the facts and our constitution. he recognizes that stripping citizens of their legal rights does not require the insurance industry to reduce insurance premiums for doctors.

Victims who survive medical malpractice are not lottery winners. They are members of our community who inherit a legacy of mourning cherished loved ones, emotional and physical devastation, and future medical care.

Tanika Blair was barely an adult herself when she was left to raise a 7-year-old brother at the age of 21. A series of preventable medical errors took the life of her mother Eula when doctors failed to properly treat Eula’s sickle cell anemia. Tanika was one of many citizens victimized by medical errors and shared her story with Lantz.

The insurance industry and its stable of lobbyists have admitted this to Congress, the press, and even our own House Judiciary Committee. “We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates,” said Sherman Joyce, Chief Lobbyist for the American Tort Reform Association, three years ago.

Lantz should be lauded for her courage to stand up to the insurance industry and reject legislation that does nothing to solve the problem and does everything to punish innocent injured patients and taxpayers. Lantz did introduce a package of bills designed to reduce transactional costs of medical malpractice litigation without comprising our constitution. This offer was rejected by the leadership in the Senate.

The Weiss study is not the first independent source to conclude damage caps only benefit wrongdoers and overpaid insurance executives. Numerous reputable studies and investigations by objective sources support the Lantz position: Business Week, the Wall Street Journal, Public Citizen www.citizen.org and the Foundation for Taxpayers and Consumer Rights www.consumerwatchdog.org.
Consider some of these basic facts:

• Insurance premiums are market driven — many industry trade magazines like Business Insurance routinely report this fact. Instead of stabilizing rates during the good times, the insurance industry irresponsibly lowered insurance premiums hoping stock market gains would cover their losses and the gap in claims.
• Lawsuit filings and payouts in Washington are flat. Medical malpractice cases are the toughest to prove, the most expensive to litigate and have averaged only 438 cases a year for the past 20 years. Actual payouts for 2001 were only 225, according to a study by Public Citizen. The average malpractice payout per doctor is less than it was nine years ago, the report also found.
• Defense lawyers for doctors request jury trials — not injured patients. There have been just 45 medical malpractice jury verdicts entered in King County in the past five years. All, but THREE, of the jury trials were requested by defense lawyers representing doctors — not the injured patients.
• Washington was ranked 41st in the nation by Public Citizen for it’s failure to properly discipline a few bad doctors causing a majority of the malpractice.
• Malpractice payouts account for less than half of one percent of all increase in health-care costs. Technology and drugs are the biggest drivers increasing health-care costs.
• Capping jury awards simply shifts the cost of who pays for the medical errors onto taxpayers and the health care industry and away from the wrongdoer. We need more lawmakers like Lantz who are willing to stand up and protect citizen juries. By protecting juries - we protect our right to decide what’s fair for each of us and in each of our communities.

(Editor’s Note: J. Michael Koch is a personal injury attorney in Silverdale.).