BIBLIOGRAFIA
01. Andrade Jr., Marcos Almeida Magalhães. Marcadores atuais da relação médico-paciente – O palco atual onde transcorre o trabalho médico. Determinantes da deflagração dos processos judiciais pacientes x médicos. In Direito & Medicina – Aspectos Jurídicos da Medicina. Ed. Del Rey, Belo Horizonte, 2001, pp. 21 e ss.
02. Branco, Gerson Luiz Carlos. Responsabilidade Civil por Erro Médico: Aspectos. In Revista Síntese de Direito Civil e Processual Civil, n. 04, Ed. Síntese, pp. 128/151, mar/abr 2000.
03. Corsaro, Luigi. Culpa y responsabilidad civil: la evolución del sistema italiano. in Perfiles de la responsabilidad civil en el nuevo milenio. Ed. Dykynson, Madrid, 2000.
04. França, Genival Veloso de. Responsabilidade Civil do Médico. In Revista de Responsabilidade Civil, n. 01, Ed. Mizuno, pp. 82/89, 2000.
Seguro de responsabilidade civil do médico – vantagens e desvantagens. Artigo extraído da internet, em 31/10/01, diretamente do endereço (http://www.ibemol.com.br/artigos/default.asp?id=53).
Noções de seguro. Artigo extraído da internet, diretamente do endereço (http://www.ibemol.com.br/artigos/default.asp?id=52), em 31/10/01.
05. Kfouri Neto, Miguel. Responsabilidade Civil do Médico. Ed. Revista dos Tribunais, 4ª ed., São Paulo, 2001.
06. King Jr., Joseph H., The law of medical malpractice. Ed. West Publishing, 2ª ed., 1986.
07. Lacerda, Galeno. Seguro de saúde. In Direito & Medicina – Aspectos Jurídicos da Medicina. Ed. Del Rey, Belo Horizonte, 2001, pp. 301 e ss.
08. Lana, Roberto Lauro. Porque um seguro de responsabilidade médica? Artigo extraído da internet, diretamente do endereço (http://www.ibemol.com.br/artigos/default.asp?id=19), em 31/10/01.
09. Robertson, William O. Medical Malpractice – A preventive approach. University of Washington Press, Seattle, 1985.
10. Sebastião, Jurandir. Responsabilidade Médica, civil, criminal e ética. 2ª ed., Ed. Del Rey, Belo Horizonte, 2001.
11. Tepedino, Gustavo. A responsabilidade civil médica na experiência brasileira contemporânea, in Revista Trimestral de Direito Civil, vol. 2, Ed. Padma, São Cristóvão (RJ), abr/jun 2000, pp. 41-75.
12. Viana, Marco Aurélio S. Seguro e medicina. In Direito & Medicina – Aspectos Jurídicos da Medicina. Ed. Del Rey, Belo Horizonte, 2001, pp. 337 e ss.
13. Vieira, Luzia Chaves. Responsabilidade Civil Médica. In Revista Síntese de Direito Civil e Processual Civil, n. 03, Ed. Síntese, pp. 147/159, jan/fev 2000.
Responsabilidade civil médica e seguro. Ed. Del Rey, Belo Horizonte, 2001.
14. Weiler, Paul C. Medical malpractice on trial. Harvard University Press, Cambridge, 1991.
Notas
1.Responsabilidade Civil do Médico. Ed. Revista dos Tribunais, 4ª ed., São Paulo, 2001, p 25.
2.Responsabilidade civil médica e seguro. Ed. Del Rey, Belo Horizonte, 2001, p. 135. Mantida a pontuação do original.
3.Paul C. Weiler, professor da conceituada Harvard Law School, em sua obra entitulada Medical Malpractice on trial, transmite uma idéia bastante fiel das dimensões do problema em solo norte-americano, ensaio que achamos conveniente transcrever trecho elucidativo: "The most immediate, most obvious source of the perceived crisis in medical malpractice is the increase in total expenditures on medical liability insurance in the United States from about $60 million in 1960 to more than $7 billion in 1988. These national expenditures reached a plateau in 1988, and in many states even dropped in 1989, evoking newspaper headlines that heralded the end of the ‘malpractice nightmare’. But doctors understandably feared that the malpractice system was experiencing no more than a remission in its critical condition, already at na expenditure level that was more than a hundred times higher than it had been little more than a quarter-century earlier.
The costs of legal liability are a function of two variables: the frequency of initiating successful claims and the amount ("severity") of damages collected in successful claims. Both the frequency and the severity of medical malpractice claims have soared over the last two decades.
Frequency. The conventional measure of frequency in the medical context is the number of tort claims filed per 100 doctors. This ratio rose from about 1 per 100 doctors around 1960 to an estimated high of 17 per 100 doctors by the mid-eighties before settling back to around 13 per 100 at the end of the eighties. These higher claims rates do not simply represent a host of additional, largely spurious claims that doctors’ insurers can successfully fend off. Nearly half of all medical practice claims generate some payment, and this proportion has not dropped as the absolute number of claims has risen. According to even conservative estimates of claims frequency, roughly 1 in 25 doctors in the United States is now successfully sued for malpractice every year.
Severity. It is plausible to surmise that the large number of additional claims are a function of less severe and costly cases entering the tort system. Yet the evidence is again to the contrary. Amounts paid on successful claims rose sharply from the sixties into the eighties, making an even bigger contribution to the increase in premiums. The most eye-catching numbers are those reported by the RAND Civil Justice Project on jury verdicts in malpractice litigation in Chicago and San Francisco. The respective average jury verdicts (in constant 1984 dollars) in the two cities rose from $50,000 and $125,000 in the early sixties, to $600,000 and $450,000 in the early seventies, to $1.2 million in each city in the early eighties. Admittedly, the absolute amounts paid in these two cities as a result of jury verdicts are not representative of settlements nationally, and even in these jurisdictions jury verdicts are often cut back by trial judges and appellate courts. Nationally, however, the average malpractice settlement more than doubled from under $12,000 in 1970 to over $26,000 in 1975, then jumped to $45,000 by 1978, neary doubled again to $80,000 by 1984, and topped $100,000 by 1986 – an aggregate increase far in excess of inflation. Moreover, in states like New York and Florida that had among the highest claims frequency levels, the average settlement on paid claims was well over the national average. And there is, of course, a direct relationship between currently rising jury verdicts and the amounts that will be requeired to settle cases in the future, and consequently the likelyhood of attracting even more patients to file claims in a system that promises them more generous recoveries.
Another disturbing feature of the trend in claims severity is epitomized by the fact that in 1988 and 1989 malpractice litigation produced among the very highest personal injury awards in those years - $52 million from a hospital in Houston, Texas, and $54 million from a hospital in Los Angeles. In the eighties, aggregate liability expenditures were driven up by a relatively small number of extremely high damage awards (which included large sums for pain and suffering or punitive damages), rather than by paiments awarded in more typical cases, in which the focus was on tangible financial losses. The effect of this divergence between the median and the far higher mean award is that the premiums charged ex ante by insurers to bear the relatively unpredictable risk of a huge award are likely to be considerably higher than the amount eventually necessary to pay for total expenditures calculated after the fact.
Considered by themselves, these figures and trends appear terribly alarming; placed in the context of the overall health care system, they seem much less so. Although malpractice premiums are initially paid by the insured doctors and hospitals, these practice expenditures are incorporated into fees charged to patients, who are in turn typically covered against such charges by health care insurance. At the same time that total malpractice expenditures soared from $60 million to $7 billion, health care expenditures spiraled as well – from around $25 billion (or 5 percent of the GNP) in 1960 to $540 billion (more than 11 percento of the GNP) in 1988. In other words, malpractice insurance as a share of the nations’ total health care bill actually rose from just under 0.5 percent to a little over 1.0 percent during that period (though the $5 billion in doctors’ malpractice premiums was a much higher proportion of the $105 billion paid to physicians for their services). Indeed, because one of the key items of economic loss in malpractice cases is the medical expense incurred in treating the injury, awards (and consequently claims) have had to rise substantially simply to accommodate the much higher cost of doctors’ fees and hospital charges.
In that broader perspective, current malpractice insurance premiums – which in 1988 averaged about $16,000 per doctor (up from $8,000 in 1984), or 6 percent of the average practicioner’s gross revenues – might appear affordable, at least as a general matter. This optimistic judgment is subject, however, to three qualifications.
Specialty and location. The costs of malpractice premiums differ sharply, depending on the specialty and the location of the practitioner. For example, while a general practitioner in Arkansas or an allergist in Indiana spends less than $2,000 in annual malpractice premiums, the total malpractice insurance bill for a neurosurgeon in Dade County, Florida, or an obstetrician on Long Island, New York, is appproaching $200,000 a year, a differential that is not necessarily mathced by a comparable cushion in doctors’ revenues. Because these insurance costs are tipically fixed, rather than variable according to the level or the quality of individual practice, every doctor who wishes to open an office must pay the premiums or risk facing serious personal exposure to liability.
Revenue lag. Studies of the experience in the seventies show that doctors recovers most, if not all, the increased costs of malpractice insurance (now running as high as 25 percent of their gross revenues) by charging higher fees to their patients. However, the time lag that is inevitable in the process of adjusting medical fees to costs has been a special problem given the pattern of change in malpractice premiums. From the early sixties to the early seventies, premiums rose steadily and substantially, then suddenly doubled from $500 million to $1 billion between 1974 and 1976. After leveling off in real terms in the late seventies and early eighties, total premiums skyrocketed again, from $2.5 billion in 1983 to $7 billion in 1988. Physicians forced to absorb such erratic and unpredictable increases in what for many had become a substantial cost of practice took little consolation from macrostatistics that showed malpractice insurance premiums to be a comparatively insignificant component of the nation’s total health care bill.
Programs constraints. An additional element of the problem emerged in the eighties in the form of a variety of cost-containment programs adopted to stem the growth in the nation’s health care budget. One consequence of these programs is that doctors faced with sudden, huge malpractice premium increases (which are often retroactive for a year or more because of delays in insurance regulatory process) are prevented from unilaterally increasing the fees billed to patients to cover this additional cost of practice by regulations adopted by Medicare, Blue Cross, and other modes of patient insurance. Their frustration at being caught between two bureaucratic regimes helped motivate doctors to adopt vigorous collective action, which in turn prompted state governments to respond with tort reforms. This happened, for example, in New York in 1985, in Massachusetts in 1986, and in Florida in 1987.
It would be a mistake, however, to assume that these financial trends are the only important source of the current crisis atmosphere. In fact, for most physicians malpractice premiums are still only a minor component of their expenses, and an even smaller fraction of their gross revenues. Even though the startling percentage increase in malpractice costs has been disturbing, the absolute dollar amounts have been smaller than the increases in other office expenses (except for doctors practicing in the highest-risk specialties and locations)."
4."A responsabilidade civil médica na experiência brasileira contemporânea", in Revista Trimestral de Direito Civil, vol. 2, abr/jun 2000, p. 74.
5.In "Porque um seguro de responsabilidade médica?" Artigo extraído da internet.