Tort Reformation Movement

30 08 2010

When a person’s life is on the line, when their health is at stake, there will always be the risk that the medical team may fail to make the best decision or make a mistake that jeopardizes the individual.  Whether the result is an injury, an illness, emotional distress or fatal, it is considered a tort (Simon et al).  In the legal sense, it is a non-criminal activity that resulted in harm to an individual where they deserve compensatory justice in a civil court setting.  Most physicians have malpractice insurance coverage which pays the damages to the potential injured patient (Beam).  However, as jurors begin to award higher amounts of damages to victims, the cost of this insurance has sky-rocketed and to offset the cost of the premiums, physicians charge more for their services (Beam).

Tort reform looks to reduce this issue by enacting caps on damages.  Tort reform also involves limiting the amount of liability that falls on the physician for their actions, thereby lessening the damages allowed (Simon et al).  Another step in tort reform is reducing the statute of limitations, as prior to 1980, most states did not have a clear definition of when the statute of limitations began and patients began filing lawsuits for injuries that were many years old, creating a huge problem in the legal system (Hennesy, 5).

In a positive light, tort reform can work to reduce frivolous malpractice lawsuits.  A recent study showed that almost two out of five medical malpractice claims were baseless, or lacking evidence of injury, substandard care, or both; yet one in four of these baseless claims resulted in payment to the plaintiff (US Chamber Institute for Legal Reform, 13).  Cases like this drive up the cost of physicians’ fees, as over 60% of physicians surveyed said that they “made their products and services more expensive” to counter their insurance costs (US Chamber Institute for Legal Reform, 8).  The Congressional Budget Office with the Department of Health and Human Services found that damage caps could reduce the insurance premiums by over 25% (Pletcher).  As a direct result of high premiums, physicians have had to cut employee benefits, increase fees for patients, reduce staff numbers and avoid offering certain procedures, thus a damage cap could actually decrease the costs of services, increase the number of staff able to care for patients and improve the quality of care available to patients (US Chamber Institute for Legal Reform).

The downside of tort reform involves a bias of the courts, where males are typically awarded more for damages as they are seen as more significant bread-winners than females; when a female is injured it is more commonly dealing with reproductive injuries, which do not have an economic impact, thereby a lesser award by the courts for their non-economic damages (Finley, 5-6).  As Professor Martha Chamallas stated, “In the world of torts, there is either economic loss on the one hand, or individual hurt feelings and emotional distress on the other” (Chamallas,1437).  By placing caps on damages or reformation that awards only for economic losses, victims who generate no income or suffer no loss of income as a result of their injuries are not compensated fairly.  And, in a Harvard School of Public Health study of over 1400 random claims, Professor David Studdert found that one-third of the claims filed did not have errors, but of those, most were not paid either; and by eliminating claims where there was no negligence found, the total amount of claims would be reduced only by 13%, proving that  “portraits of a malpractice system that is stricken with frivolous litigation are overblown” (Studdert et al).

I do believe that there is a need for more stringent reformation than exists today, specifically with a look at creating standard damages for like sufferings, reducing damages when negligence did not play a role in the suffering, and having pre-trial screenings.  One thing I know about medical malpractice lawsuits is that sometimes the patient or their family must file suit to have certain details about the incident disclosed, they might not be actually looking to sue, but rather just be better informed.  A pre-trial screening would allow all the parties to come to the table and discuss the concerns without having the troubles of a trial.  I also believe the damages should be reduced when the situation wasn’t due to an error; there should be a level of liability in order to file suit.  And I believe by setting a standard guideline for damages based on the level of liability and the type of damages, this will reduce the level of juries looking to prove a point with large corporations in their verdicts.  The injured and their families certainly deserve compensation and an avenue of recourse for their troubles, but it shouldn’t be handled with a blank signed check either.

 

 

Works Cited

Beam, J. “What Is Malpractice Insurance?” WiseGEEK: Clear Answers for Common Questions. 19 June 2010. Web. 01 Sept. 2010. <http://www.wisegeek.com/what-is-malpractice-insurance.htm&gt;.

Chamallas, Martha. “Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic Loss.” Loyola of Los Angeles Law Review 38.3 (2004): 1435-468. HeinOnLine. Loyola of Los Angeles, 2004. Web. 30 Aug. 2010. <http://llr.lls.edu/volumes/v38-issue3/docs/chamallas.pdf&gt;.

Finley, Lucinda M. “THE HIDDEN VICTIMS OF TORT REFORM: WOMEN, CHILDREN, AND THE ELDERLY.” EMORY LAW JOURNAL 53 (2004): 1-71. EMORY LAW JOURNAL, 2004. Web. 30 Aug. 2010. <http://www.law.buffalo.edu/baldycenter/pdfs/finlelypaper.pdf&gt;.

Hennesy, Katherine. “The Effects of Malpractice Tort Reform on Defensive Medicine.” Issues in Political Economy 13.8 (2004): 1-18. Ursinus College, Aug. 2004. Web. 1 Sept. 2010. <org.elon.edu/ipe/Henessey_Edited.pdf>.

Pletcher, Matthew G. “A Review of Tort Reform’s Impact on Malpractice Premiums: Is It the Answer? – Beirne Maynard & Parsons – Texas Litigation Law Firm.” Beirne Maynard & Parsons – Houston and Dallas, Texas Litigation Law Firm. Feb. 2004. Web. 01 Sept. 2010. <http://www.bmpllp.com/publications/articles.php?action=display_publication&publication_id=28&gt;.

Simon, Jeffrey, Ron Eddins, and David Greenstone. “What Is Tort Reform?” Worldwide Legal Directories. HG.org Worldwide Legal Directories. Web. 31 Aug. 2010. <http://www.hg.org/article.asp?id=7041&gt;.

Studdert, David M., Michelle M. Mello, M. Phil, Atul A. Gawande, Tejal K. Gandhi, Allen Kachalia, Catherine Yoon, Ann Louise Puopolo, and Troyen A. Brennan. “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” Shouxi. Harvard School of Public Health, 2006. Web. 31 Aug. 2010. <http://journal.shouxi.net/qikan/article.php?id=221699&gt;.

US Chamber Institute for Legal Reform. “Tort Liability Costs for Small Business.” US Chamber Institute for Legal Reform, July 2010. Web. 31 Aug. 2010. <http://www.instituteforlegalreform.com/images/stories/documents/pdf/research/ilr_small_business_2010.pdf&gt;.

 

Advertisements

Actions

Information

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




%d bloggers like this: