Trend: Medical Malpractice Tort Reform

Tort reform is a change in personal injury law. In medical malpractice, tort reform advocates, like medical malpractice insurers, want to limit tort liability for doctors. This liability reform protects doctors when they make medical errors.

States have continued the effort to pass tort reform bills. In 2005, more than 48 states introduced over 400 bills. State legislatures modified or amended their medical malpractice laws. At the state level, there are more laws and changes to existing medical malpractice statutes every year.

Tort Law Basics

In its most basic form, tort law is personal injury law.

A tort claim allows a person to sue another person or company after they have suffered personal harm. Here are a few commonly known torts (or harms) that lead to tort lawsuits.

• Car accidents
• Defective products
• Slip and falls
• Assault
• Battery
• Infliction of emotional distress
• Dog bites
• Nursing home abuse
• Defamation
• Invasion of privacy
• Wrongful death

Economic Recovery in a Tort Case

A patient can get economic damages in tort.

Economic damages are easy to measure because they can be documented. What are economic damages?

• Medical bills
• Cost of replacing damaged property
• Lost wages (days missed from work due to an injury)

What are non-economic damages?

• Loss of a limb
• Pain and suffering
• Loss of enjoyment of activities
• Emotional distress
• Loss of consortium (loss of a family member's company)

Non-economic damages are more difficult to measure. It is up to a jury to decide what a company or person should pay for a lost finger, a deceased family member, or lost vision.

Given the extreme nature of some of those harms, some juries have awarded large amounts to plaintiffs. Sometimes, jury awards can be as high as tens of millions of dollars. As a result, some states created non-economic damage caps for jury awards, limiting the amount a jury can award.

Arguments for Tort Reform

Much of the reasoning behind tort reform is that medical malpractice lawsuits create high medical costs.

Medical malpractice insurers are proponents of tort reform. Medical liability insurers claim that there is a malpractice crisis. The insurers claim the costs of defending medical malpractice suits are causing a rise in malpractice insurance premiums and health care costs.

Insurance companies want to limit the amount of money a patient can get during medical malpractice litigation. If a doctor commits medical negligence, professional liability insurers want to limit how much they pay a patient.

Medical malpractice insurers argue that expensive lawsuits increase companies' cost of providing medical care. The high cost gets passed to the patient and the health insurance company. The insurer has no choice but to raise insurance premiums to cover the higher medical bills.

For doctors, the fear of getting sued has led many to perform defensive medicine. Instead of worrying about patient safety, doctors are increasingly worried about potential lawsuits. Doctors order more tests and use expensive imaging devices to protect themselves from future lawsuits.

Arguments Against Tort Reform

Tort reform has recently been a hot topic in the legal community in recent years.

The American Bar Association (ABA) doesn't support tort reform because it believes, among other things, that it restricts patient rights through damage caps. Damage caps limit how much money a patient can recover.

Damage caps take away patients' rights to recover compensatory and punitive damage payouts from medical mistakes by doctors. The ABA believes that patients should be able to sue and recover full damages when a doctor commits a civil wrong. If a patient wins a medical malpractice claim, the patient may only, depending on the state, recover damages capped at, say, $250,000. No matter how much damage a doctor caused, doctors only have to pay a limited amount.

Those against tort reform also argue that limiting malpractice liability will not make a difference in health care spending in the United States.

Examples of State Malpractice Tort Reform Laws

Most states limit damage awards today, and many have established attorney and contingency fee limits.

Most states have a two-year statute of limitations for standard claims. But some states are different. For example, New York has a two-and-a-half-year statute of limitations.

Most states have also eliminated joint and several liability in medical malpractice lawsuits. At the federal level, Congress has debated whether federal legislation that would preempt (override) all existing state laws governing medical malpractice lawsuits.

Other examples of tort reform include:

• Texas — In 2003, a bill capped non-economic damages. This limited pain and suffering recovery in malpractice claims to $250,000 and heightened the level of misconduct necessary to win a malpractice case in emergency care.
• California — California was the first state to pass tort reform that limits plaintiffs' leverage. The Malpractice and Injury Compensation Reform Act limits pain and suffering damages to $250,000.
• Florida — Private teaching hospitals are shielded from malpractice claims. Non-economic damages are capped at $300,000 per incident.

Get Legal Help With Your Medical Malpractice Issue

Do you have a medical malpractice case? Maybe you aren't sure.

Will tort reform limit your damages? You should speak to an experienced attorney in medical malpractice law to protect your rights. A local attorney can review your claims and help you decide your next steps.