Changes in Laws Affecting Medical Malpractice

Refuting Arguments for Tort Reform

Tort reform, which is a code phrase for dismantling the civil justice system, has focused in the past decade on limiting the remedies available to victims of medical malpractice by doctors, hospitals and other health care providers. The arguments for doing so are numerous. They are also weak at best and false at worst. Let’s take a look at some of these arguments’ actual facts.

• The proliferation of medical malpractice lawsuits is the reason why health care is so expensive in the United States. Actually, lawsuits and the fear of lawsuits have been responsible in part for improving safety in hospitals, some of which have implemented significant improvements in how they provide care – improvements that have benefited patients and the bottom line.
• Because they fear being sued, doctors practice defensive medicine by ordering unnecessary tests that drive up the cost of health care. Several federal reports have found that the incidence of unnecessary tests is low and have further suggested that doctors prescribe unnecessary tests not because they fear liability, but because they can bill for them.
• Doctors will leave the state, city or region because of the growing cost of medical malpractice insurance premiums. Although this argument has been used in numerous states, the experience of New York is instructive. Rates in New York have actually decreased slightly and have risen far less than the Consumer Price Index (CPI), even though New York law has not been affected greatly by tort reform. The primary reasons for the cost of medical malpractice insurance are medical errors and negligent treatment.
• Limits (caps) on pain and suffering awards will reduce the cost of medical malpractice insurance and thus health care. Experts indicate that caps have little to do with increased health care costs and medical malpractice insurance premiums and have a significant social cost that leaves already poor and disadvantaged people injured by medical negligence in an even worse position.

Other arguments include allegations that a particular state is too plaintiff-friendly and that doctors, hospitals and insurance companies cannot get fair treatment.

Advocates of Tort Reform Spend a Lot to Promote Their Goals

Abundant proof that each of these arguments is wrong does not stop medical associations, insurance trade groups and other organizations such as the American Tort Reform Association and the American Legislative Exchange Council from spending lots of money to promote the agenda of limiting access to the justice system for those who were injured by a negligent health care provider. In other words, proponents of so-called tort reform want to lower the number of lawsuits against negligent parties that, if successful, would require insurance companies to pay significant amounts for covered doctors, hospitals and other providers who are found liable for medical negligence.

The efforts of the tort reformers to dismantle the civil justice system, despite the underlying weakness of the arguments, have proven successful in many states. The result has been a number of changes in tort law across the country that have had the effect of limiting access to the civil justice system.

Tort Reform in New Jersey

For example, New Jersey now requires an affidavit of merit. The plaintiff must present this affidavit from a qualified expert swearing that the case has merit. In some instances, patients do not yet have the full picture of the situation before they have to present the affidavit in court. There has been significant litigation disputing the qualifications of the experts who testify for the affidavits.

Injured patients have trouble obtaining affidavits because doctors are usually reluctant to testify against other physicians. Simply finding someone who will attest that a case has merit is becoming increasingly difficult.

Tort Reform in Texas

Texas, one of 31 states that have capped medical malpractice damages, limits awards for pain and suffering to $250,000. Tort reform took effect in Texas in 2003 and proponents say that medical malpractice premiums have gone down and doctors no longer practice defensive medicine because they are not as afraid of lawsuits. Opponents say that injured and bereaved people are discouraged from filing lawsuits because of the change. Attorneys are reluctant to take on noncatastrophic cases because the costs are significant and probable awards are severely limited by the cap.

Tort Reform in Other States

There are variations in how caps on awards are applied. For example, Alaska, Florida, Ohio and Massachusetts have caps that can be waived or increased in cases of catastrophic injury. Caps in Oregon and Maine are imposed only in wrongful death cases; injury cases have no caps. Most states with caps are not as restrictive as Texas; 18 states have noneconomic damages (usually pain and suffering) caps from $250,000 to $500,000.

Tort Reform in Pennsylvania

And what of Pennsylvania? Pennsylvania does not have caps on negligence awards. Yet, the number of medical malpractice cases has gone down significantly in the past 10 years, as it has in other states without caps, showing that caps do not automatically result in declines in lawsuits. There are other factors at play.

Sadly, improvement in medical safety is not the reason for the decline. Studies continue to show significant rates of medical error. Rather, at least in Pennsylvania, other changes have caused the reduction in the number of medical malpractice claims. Pennsylvania has certificates of merit, similar to New Jersey’s affidavits. Injured patients can no longer “shop” for a court that they believe will be the most sympathetic. Other changes include periodic payments of future medical and other expenses, rather than lump sums; a limit on calculating future earnings losses based on only current worth, rather than on possible or estimated worth in the future; and an abrogation of joint liability that limits the amount a defendant can pay in the event of a default by another liable party.

Declines in medical malpractice cases across the United States reflect a complex set of circumstances and cannot always be traced to caps on medical malpractice awards. However, the overall impact of reform efforts has had the effect of reducing the ability of ordinary people to seek justice after being injured by a provider’s negligence.