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A New Study Shows That Tort Reform Has Failed

On Behalf of | Mar 6, 2015 | Firm News

You may remember that back in January, I wrote a couple of posts about tort reform (if you missed them, you can find them here & here); to briefly recap, tort reformists claim that by capping compensation payouts, insurance premiums and medical costs are lower for consumers. On the face of it, this seems perfectly logical; however in practice, not only has it proved to not be the case but it has also led to many people being left financially bereft, and perhaps worse, without a course of justice because often, it would cost more to bring a lawsuit than the damages awarded be. This is especially true for New York medical malpractice lawyers, who, working on a contingency basis, will typically receive somewhere between 10-30% of an award (more often than not, the lower end of the sliding scale)… as long as it is in excess of $1.25m. In addition, because of tort reform, victims in New York now have to pay for a doctor to review their case and issue a statement that the case is worth taking further – if they cannot afford to pay the doctor, their quest for justice cannot proceed.

The publication of a recent study in the New England Journal of Medicine, which was conducted by a team of five doctors and health experts, has shown that tort reform, which began in California in the early ‘80s, is actually ineffective in reducing medical costs, primarily because doctors, particularly those in the emergency room, are increasingly practicing what has been termed, ‘defensive medicine’ as a way of arguing for tort reform. This type of healthcare practice involves prescribing expensive tests and procedures, many of which – e.g. MRIs – may not be necessary. The reason for this was thought to be less about providing the best possible care for their patients but rather, as a way of limiting the chances of litigation, should something untoward happen.

This NEJM study, which examined 3.8 million ER cases across 1166 hospitals in Georgia, South Carolina, and Texas in the years spanning 1996-2012, is just the latest in a long line of studies from around the country, which have all come to the same conclusion – that none of the alleged benefits of tort reform have proven to be true. Tort reform simply does not work. And the reason that the much-lauded benefits of tort reform – a reduction in so-called jackpot lawsuits, fewer doctors leaving the profession, smaller jury-decided awards, and lower medical insurance costs – is that all the ‘reasons’ that have been cited for tort reform have proved to be non-existent. The Department of Justice itself discovered that the average medical malpractice payout awarded by a jury is just $400,000. Yet in cases where there is no jury, where the judge makes the decision, the average award is $631,000.

Because of tort reform, it’s almost impossible for doctors in Georgia, South Carolina, and Texas to be sued for medical malpractice, and yet, the study proved that incidences of expensive tests (for example) were no lower than in states where there is no tort reform. Ergo, if so-called defensive medicine really is practiced as a way of reducing litigation risk, then in states where there is little to no chance of litigation, there should be markedly fewer costly tests and procedures, and medical costs should be lower. But this is not the case; even when there is no risk of a doctor being subjected to a lawsuit, their behavior does not change.

Each year, almost a million people are unfortunate enough to lose their lives due to medical errors, and in an indirect way, tort reform must bear some of the blame for this. Since tort reform, R&D into patient safety has slowed considerably, due to fewer lawsuits providing an incentive for improvement. For example, back in the ‘80s, huge steps were made in anesthesiology because of large litigation payouts and the bad press they brought. Anesthesiologists responded to this by overhauling their working practices, and redesigning their equipment. In less than a decade, deaths relating to anesthesia had fallen from one in six thousand to 1 in 200,000. Accordingly, malpractice insurance for anesthesiologists is now one of the lowest in any medical specialization. Tort reform removes the incentive for R&D, and therefore, improvements which would benefit medics and patients alike, fail to occur.

If you or someone you care about has suffered because of what may be medical negligence, you should seek legal counsel as soon as possible. Our expert medical negligence lawyers understand how overwhelmed you are feeling, will be able to answer your questions, and ascertain the best course of action for you. Call our New York medical malpractice lawyers at Antin, Ehrlich, and Epstein LLP today on 917-730-7151 for a free consultation.