Forbes’ Comprehensive, Fact-Based Critique of Tort Reform

“Tort Reform” was back in the news last month thanks to an article in Forbes by Steve Cohen provocatively titled “Can Obamacare Improve Patient Safety? Tort Reform Hasn’t?” In it, Cohen argues what this blog has been asserting for years, that tort reform has not led to beneficial results for doctors, patients or the national healthcare budget.

Cohen claims that shortened statute of limitations laws–the time a patient has to file a lawsuit–have resulted in more doctors being sued: “Very often, the clock runs out before a patient even discovers he or she is the victim of malpractice. [… A]s a way to stop the clock and preserve their rights, plaintiffs often include every conceivably liable doctor in the initial suit.” This was a feature of our most recent article about a victim of tort reform in Texas.

Another major point is that medical malpractice cases are very rare, and they do not cost nearly as much as tort reform proponents would have individuals believe. Cohen writes, “Overall, the cost of defending malpractice claims and compensating victims in 2009 was $6.6 billion. And while not small, it is negligible as a percentage of overall healthcare costs: just 0.3% of the $2.5 trillion spent on healthcare that year.” This is significantly smaller than an estimate in The New York Times in which a law professor at the University of Pennsylvania claimed that this figure was between 1 and 1.5%.

As far as the number of malpractice cases is concerned, “[m]ost experts agree that the number has held steady at about 85,000 annually for many years. In the abstract, that number may seem huge. But, when compared to the number of avoidable deaths occurring in our hospitals every year [according to a recent study, this number may be around 400,000], it is a shockingly small percentage of the legitimate cases that could be filed.”

For tort reform advocates who claim the threat of lawsuits forces doctors to practice defensive medicine, Cohen has a counterargument, this time from a practicing physician in New York who requested anonymity: “The more tests doctors order–even if they are marginally necessary–the more doctors earn. […] We have to make a living, and it is getting tougher and tougher to do so. […] I have no compunctions about ordering them and billing for them. It is part of the business.”

Cohen also debunks the notion that that tort reform has brought doctors to underserved areas. He cites Tom Baker of the University of Pennsylvania who says, “Not one of the five major studies designed to rigorously track and analyze this claim have found any evidence to support the claim.” As for doctors’ insurance rates, Cohen pointed to no less than eleven studies that “found that despite dramatic caps on pain-and-suffering awards, much lower fees for lawyers, and barriers designed to keep cases from ever reaching the courthouse steps,insurance premiums still increased in tort reform states. In fact, they went up almost as much as in non-tort-reform states, trailing by only 6% to 13%.”

Though Cohen’s article is about the Affordable Care Act, he ultimately penned an evidence-based refutation of the oft-repeated canards of the tort reform movement. Hopefully these facts will help the public to see ways in which tort reform has not only failed victims of medical negligence, but caused many of them great harm.