Has Medical Malpractice Tort Reform Enacted any Positive Change in the United States?

March 28th, 2012

The question is whether or not medical malpractice tort reform has enacted any positive change in the United States. The answer you get depends almost completely upon whom you ask.

Advocates for tort reform legislation argue that doctors who fear lawsuits for medical negligence practice “defensive medicine,” ordering unnecessary tests and complicated procedures to cover all their bases. They claim that this drives up the cost of healthcare for the average citizen, which, when coupled with rising medical malpractice insurance costs for doctors and large settlements and verdicts against hospitals, is no good for anyone.

Those who oppose tort reform legislation think just the opposite: healthcare costs are inflating because of expensive new technologies and medication. Many also argue that rather than fearing litigation, it is generally in a hospital’s financial interest to maximize treatment, as the current structure has patients paying more for additional tests and procedures. As of 2009, malpractice costs represent 0.46% of total healthcare spending . Again, that is less than one half of one percent. Most importantly, critics of tort reform claim that caps on damages are completely unfair. In other words, if people are harmed through no fault of their own, they have the right to be fairly compensated, and it is the job of jurors and judges, and not politicians, to tell them what monetary amount is fair.

Has any state that has enacted tort reform legislation seen any positive or negative changes in its healthcare system?

Again, as you might expect, it depends. Ohio passed a tort reform package that includes caps on pain and suffering, and damages (except in catastrophic cases, defined as permanent physical deformity, loss of limb[s] or organ system[s], or permanent injury that prevents the injured person from caring for him- or herself).

Stephen Koff of the Cleveland Plain Dealer writes:

“In 2004, the year Ohio passed lawsuit liability reform, average premiums for employer-based family health plans were $9,590, according to data from the nonpartisan Kaiser Family Foundation. By 2008, average family premiums were $11,425. This means that four years after the state passed reform, health insurance for Ohio families in employer plans had gone up by 19 percent. That compared with a national average rise of nearly 22 percent during that time.”

In short, yes, costs did not rise as quickly as the national average, but only by the slimmest of margins. This cannot be attributed to caps on damages with any kind of certainty, as correlation does not prove causation. What is even more important to note is that states like Kentucky, which borders Ohio, saw even less of an increase in premiums without any tort reform measures. Tort reform supporters cannot explain this statistic. The additional fact that lawsuits usually take several years to make it from filing to result further confuses these numbers.

Tom Baker, a University of Pennsylvania Law School professor said in a 2009 interview: “We have approximately the same number of claims today as in the late 1980s. Think about that. The cost of health care has doubled since then. The number of medical encounters between doctors and patients has gone up — and research shows a more or less constant rate of errors per hospitalizations. That means we have a declining rate of lawsuits relative to numbers of injuries.”

While this state has not yet passed legislation capping damages, Pennsylvania medical malpractice lawyers and those injured due to negligence still fear the prospect. Advocates hope to avoid such measures, especially since the state has seen dramatic decreases in the number of medical malpractice suits filed over the past decade. Be sure to check back next week, where the topic will be just that.


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