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There is no malpractice crisis in Montana

It is unfortunate that retired OB-GYN and guest columnist Dr. David B. Roberts hasn’t heard the good news about the current state of medical malpractice lawsuits in Montana. This also goes for the doctors recently used by Sen. Jon Tester during his public relations health care road show, which unfortunately reaffirmed many myths about medical malpractice, at least in Montana.

The truth is that Montana does not have a medical malpractice crisis. Insurance companies may be charging doctors income-crushing premiums, but it is not because our legal system is out of control or that juries should be abandoned in favor of some other system. Montana’s justice system is working just fine.

In 1977, the Montana Legislature created the Montana Medical Legal Panel to prevent, where possible, the filing of court actions against health care providers where the facts do not permit at least a reasonable inference of malpractice. In other words, the prevention of “frivolous lawsuits.”

“Frivolous lawsuits” is repetitively chanted by critics and politicians as one of the primary causes of out-of-control health care costs. But is this true in Montana? The full provisions for the panel can be found in Title 27, Part 6 of the Montana Code Annotated. The idea is simple. Before any lawsuit can be filed against a doctor or hospital, the claim must be presented to a panel of three doctors and three lawyers and evaluated for merit. The decision of the panel is nonbinding but a review of the statistics shows that the panel is achieving its goal – the prevention of frivolous malpractice lawsuits.

What are the facts? As a result of this special lawsuit protection afforded to no other Montana citizen, the panel has been able to track virtually every claim made against any Montana health care provider in the last 30 years. The latest report was released June 22. The full 20-page report can be viewed at the Montana Medical Association Web site,

The table found on Page 4 of the report provides a perfect snapshot of what has actually been going on in Montana’s courtrooms for the past decade. It shows that from 1998 to 2008 there were a total of 24 trials in the state. The patient prevailed just five times. Roberts asserts that “sympathetic juries outnumber physicians,” implying that the civil justice system is unfair to doctors. He is just wrong on the facts. There are no runaway juries in Montana. The statistics seem to prove that convincing a Montana jury is actually rather difficult.

Only one Montana dentist was sued in Montana in the past 10 years. The dentist prevailed. Only one podiatrist was sued. The podiatrist prevailed. Why do they even carry insurance? Why would their premiums be so high? Let the insurance companies explain.

Other statistics in the report show a clear downward trend for complaints from patients even though the overall number of health care providers has significantly increased during this same 10-year period. If there actually were a crisis caused by too many greedy lawyers and patients, wouldn’t there be an overall increase in the number of complaints? Statistics show a slight decrease in claims.

During this same decade, the shrill cry for tort reform has gone unchallenged. Before anyone blindly believes the next legislator, senator or representative who claims that we are victims of an out-of-control civil justice system in Montana, check out the facts gathered and reported by the Montana Medical Association. Leave the Montana justice system alone. It continues to function just fine. The facts prove it.

Thomas C. Bulman, of Bulman Law Associates, is an attorney in Montana.

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