The Tort Reform Myth

Many Americans still believe the justice system in America is broken as a result of plaintiffs trial lawyers and frivolous lawsuits, especially against doctors. Unfortunately, there are some who will always believe this. But facts have always existed and continue to arise that reveal the truth about this myth.

Over the last two decades, medical insurers (insurance companies), the American Medical Association, and the US Chamber of Commerce have very effectively manufactured a crisis that does not exist, and paid an army of lobbyists to take up the cause: the fictitious crisis of frivolous lawsuits that are supposedly driving doctors out of the business and causing patients to suffer.

If a crisis has existed related to the medical profession at all, it has been the staggering number of medical mistakes committed by doctors and the deaths and injuries suffered by patients in this country as a result. In what is considered one of the most authoritative and seminal report available, The Institute of Medicine in 1999 described the problem in To Err is Human as "the nation's epidemic of medical errors" and concluded, "it is not acceptable for patients to be harmed by the health care system that is supposed to offer healing and comfort."

Up to 98,000 Patients Die Each Year

The Institute of Medicine (IOM) was established in 1970 as the health arm of the National Academy of Science, a non-profit research association whose mission is to provide unbiased authoritative advice to policy makers and the public on important matters of health and health care. In its report, To Err is Human, the IOM concluded in 1999 that as many as 98,000 patients are killed each year in the United States due to preventable medical errors. To help put this number into perspective, this is the equivalent of a 747 jumbo jet full of passengers crashing in this country every week for a year. That staggering figure doesn't even include the thousands of patients who suffer serious harm yet survive.

The problem of medical mistakes in this country is real. But rather than study the problem in order to come up with solutions, medical insurers as well as the American Medical Association would rather scare the public with incessant cries of "frivolous lawsuits" in order to pass legislation in states to limit physicians' and hospitals' accountability for medical mistakes that too often destroy families' lives.

It's not as if the expectation for physicians and hospitals is pure perfection. Of course mistakes happen. Mistakes happen in every profession including engineering, accounting, product design and, yes, law. Some of the smartest scientific minds in the world made errors that led to the space shuttle disasters. It's when the health care industry, doctors and hospitals refuse to take any responsibility for the harm they cause that so many people become outraged, and when they fail to acknowledge the problem and implement systemic corrections.

The Myth of Tort Reform

Still many groups have fought hard to convince Americans that plaintiffs lawyers are the problem and jury verdicts in medical malpractice lawsuits are just too high, that the doctors and hospitals responsible for up to 98,000 preventable deaths a year are the victims of unfair legal attacks by their patients and their lawyers. Without offering any proposals to address the alarming number of preventable medical mistakes, their solution has focused exclusively on placing limits on the amount a plaintiff can receive in a lawsuit, regardless of what a jury decides would be fair and just compensation for a patient. Measures to arbitrarily limit jury verdicts, and shield in other ways doctors and hospitals that make serious mistakes, is today called "Tort Reform."

Texas has been one of the states most aggressively limiting the access by ordinary citizens to the civil justice system in the name of tort reform. Lobbyists in Texas have argued, like lobbyists in other states, that injury lawsuit need strict limits because doctors end up ordering too many unnecessary tests out of fear that they'll be sued. They've coined the phrase "defensive medicine" to describe what should more accurately be called, medicine. Most patients would agree that getting an accurate diagnoses is a good thing, and to have their doctor catch a deadly cancer that can be treated if caught early, is a good thing. To most people with common sense, all reasonable medical tests should be ordered to fully diagnose a patient's problem. But leaders of the tort reform charge have convinced many that doctors are ordering too many expensive tests and in turn health care spending is out of control and unsustainable.

Tort Reform Has Not Reduced Health Care Costs

The Journal of Empirical Legal Studies, however, recently released a report which reveals that despite all the measures of tort reform taken by the Texas legislature since 2003, which were supposed to reduce "overtreatment" and thus health care costs, haven't. The study only just released indicates that there is no evidence that health care costs in Texas have dipped since a 2003 constitutional amendment limiting payouts in medical malpractice lawsuits. Proponents of tort reform in Texas relied heavily on the promise of reduced health care costs to convince voters to support the jury verdict limits, but those promises haven't been kept. "Your YES vote on Proposition 12 means: Lower costs and more security in our health care system," said one flier. Another, which was in the form of a letter from Gov. Rick Perry, said "Texans can help make health care more affordable and accessible" by voting for tort reform. But health care costs haven't dropped according the JELS's new study.

Supporters of tort reform measures in Texas would argue though that the overall number of claims against doctors did drop after 2003 as well as the total amount of settlements paid out in the claims that were filed. But this is not necessarily a good thing - unless you're the insurance company reaping the profits. It means that fewer patients were able to find attorneys willing to file their cases in the hostile, post 2003, Texas legal environment. There's no evidence that any state's efforts at tort reform have actually resulted in fewer medical mistakes by physicians and hospitals. Given the staggering number of patients injured or killed each year by preventable medical malpractice, shouldn't the medical community find the time and energy soon, at least as much as they've put into tort reform, to improve a medical system where so many patients are harmed?

Angel Law, P.C. is a Portland Oregon Medical Malpractice Law Firm.

See the link to the JELS study http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1635882

See the link to the article by Mary Ann Roser of Austin's statesman.com athttp://www.statesman.com/news/local/new-study-tort-reform-has-not-reduced-health-2402096.html