Oct 10 2008

Tort Reform: Helpful But Not Enough

Published by at 8:47 pm under Healthcare Reform

If you spend enough time around a knowledgeable group of physicians (which is not hard to find, after all) discussing issues of medical malpractice, the conversation naturally finds its way to tort reform. Tort reform is of central importance to modern medical practice.

To understand tort reform however, you have to first understand tort law. The central tenet of tort law is that when someone has been negligently injured, he has a legal right to claim compensation and damages from the person who injured him. In other words, they have a right to “be made whole.” Obviously, many people cannot be returned to their pre-injured state. So, money has to make up the difference.

To prevail, to the injured party must prove the “tortfeasor” (the person causing the injury) has, in some way, been negligent. It is easy to see, therefore, the relevance of tort law for a patient who feels his physician has negligently failed in his duty of care. A number of studies (such as the Harvard Study, published in 1980) have demonstrated little correlation between negligence and litigation. Those who are negligently injured often do not sue. Those who are injured, but not by negligence, often do sue. The medical-legal system has been metaphorically described as a traffic cop who gives tickets to those going through a green light; but, the same traffic cop lets those running the red light continue unimpeded. In other words, it’s a system that does not work. And, it’s expensive. The cost of this litigation has increased over the last fifty years at a rate higher than inflation.

So where does tort reform fit into this picture? Those who advocate tort reform, such as ourselves at Medical Justice, recognize that current tort laws in many states are inefficient at best, and cause an extra burden of costs and resources within the justice system and the medical profession, directly, and more importantly, indirectly.

We see no justification for some states allowing unlimited recovery while other states limit damages. One of the effects of this dynamic is to encourage highly qualified and professional physicians to leave the medical profession or to move from states where tort issues are front and center. The medical profession has been advocating tort reform for many years, with some successes and some failures. For example, even in some states where tort reform has placed caps on damages, attorneys have compensated by filing more claims (“making up for the deficiency in volume.”).

Medical Justice was formed in 2002, in no small part due to the need for tort reform throughout the U.S. legal system, and to work with physicians suffering from the threat frivolous malpractice suits. The founder of Medical Justice, Dr Jeffrey Segal, wrote in The Wall Street Journal in July 2007, ‘…we can’t begin to adequately address the problem of patient safety until we clear the dockets and cut the costs which are wasted on meritless claims and the much larger derivative costs of defensive medicine.’

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