Trend: Medical Malpractice Tort Reform

In recent years, increased tension and conflict between patients, their insurers, the medical community and its insurers, trial lawyers, and victims' rights groups have helped spawn a movement addressing medical malpractice: tort reform. In 2005 alone, more than 48 states introduced over 400 bills and modified or amended their laws to reflect the need to effect real change. Every year sees more laws and changes to existing statutes in the books.

Tort Law Basics

In its most basic form, tort law is personal injury law. It allows a person to sue another person or company after they have suffered a form of personal harm. Some commonly known "torts" or harms that lead to tort law suits are: car accidents, defective products, slip and fall, assault, battery, infliction of emotional distress, dog bites, nursing home abuse, defamation, and invasion of privacy.

Economic Recovery in a Tort Case

Because the type of harm suffered in a tort case cannot be reversed, paying a victim for his or her injuries is the only method of compensation we have. Medical bills, and the cost of replacing damaged property, and even loss of earning capacity, are examples of damages that are relatively easy to find a value for. However, some other harms, like loss of a limb, pain and suffering, loss of enjoyment of activities, emotional distress, and loss of a family member's company, are more difficult to put a number on. In those more difficult calculations, it is often up to a jury to decide what a company or person should pay for a lost finger, a deceased family member, or lost vision, for example. Given the extreme nature of some of those harms, some juries have awarded large amounts to plaintiffs, sometimes amounts as high as tens of millions of dollars.

Arguments for and Against Tort Reform

Much of the reasoning behind tort reform is the notion that medical malpractice lawsuits are one of the biggest drivers of high medical costs. The argument is that expensive law suits increase the cost for companies to provide medical care, and the high cost is passed to the consumer, or the insurance company who then raises the cost of insurance premiums to cover the higher medical bills. On the flip side are arguments that limiting malpractice liability would barely put a dent in health care spending in the United States. Still, the fear of being sued has led many doctors to perform what is called "defensive medicine," which describes when doctors order additional tests and use expensive imaging devices in order to provide a shield against later lawsuits.

Examples of Tort Reform

More than half the states now limit damage awards and many have established limits on attorney fees. Moreover, almost all states now have two year statutes of limitations for standard claims and have eliminated joint and several liability in malpractice law suits. At the federal level, Congress has debated federal legislation that would preempt (override) all existing state laws governing medical malpractice lawsuits.

Examples of State Malpractice Tort Reform Laws

• Texas: A bill was passed in 2003 capping non-economic damages, such as pain and suffering, from malpractice claims at $250,000 (with a "willful and wanton" negligence standard applying to emergency care.
• California: 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 through "sovereign immunity;" non-economic damages 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. Whether or not you have a claim, and whether or not your damages would be limited by tort reform, you should speak to an experienced attorney in your area to protect your rights. A local attorney can review your claims and help you decide what your next steps should be.