The entire issue of tort reform has been much in the news over the past several weeks. The new health care bill does little to address this issue beyond allocating some funds for “demonstration projects”. Yet, the best laboratory our Republic has is the states. At the state level tort reform has continued for over 35 years as the need to address the run away train of litigation became clear. Currently between 30 and 40 states have laws which place caps on punitive damages, restrict joint/several liability, limit collateral source, allow for periodic payments and have an “I am sorry” protection for providers. About 15 states have limited attorneys fees in liability cases.
Many of these changes were brought about in the states due to acute events which occurred. These events ranged from entire specialties leaving a city, county or state to various specialties limiting the types of services they would provide (such as obstetric care and delivery of babies). The first breakthrough in this area was the 1975 California law which placed limits on non-economic damages at $250,000 (while still continuing to allow unlimited recovery of economic damages as well as associated medical costs). Malpractice premiums since 1975 have increased and astounding 1,000+ % nationwide, yet in California, they have risen only one-third of that amount.
States with tort reform have seen greater access to physicians and specialist for their citizens as doctors have viewed these states as “friendly and reasonable” places to practice. For example, since the Texas tort reforms of 2003, liability insurance rates have fallen by over 25% and there has been an influx of doctors of all types to the Lone Star State.
I’m sorry laws have now also appeared in over 30 states. These laws allow physicians, other medical professionals and caregivers, as well as hospitals and medical facilities to extend an apology without that expression of sympathy or regret being used against them in any way in legal proceeding. There is evidence that in many cases, when an acknowledgment of an error is made accompanied by a sincere apology, this actually reduces the risk of litigation.
Recent court decisions, such as the Georgia’s Supreme Court’s decision to invalidate the Georgia Medical Malpractice Act of 2005, are renewing concerns that the powerful trial lawyers lobby, most notably represented by the American Trial Lawyers Association, will continue to attack and erode legislative gains made in this area. Many feel much of the blame for lack of meaningful tort reform in the recent health bill stems from the fact that the trial lawyers have been strong financial supporters of President Obama and Democratic lawmakers.
Clearly, some common sense reform is needed. While defensive medicine is purported to account for “only” about $50 billion in added costs, many feel the costs are much higher. Since it is truly impossible to measure the effects of this, one must speak to physicians themselves to gauge the level of defensive medicine that is occurring. Suffice it to say, that we KNOW that the amount is much higher than reported. In fact, the current system essentially is replacing physician experience and judgment with tests, imaging and diagnostic procedures. Liberal use of technological advances is to be applauded overall as they are an aid to diagnosis and early detection. However, using these tools to salve patient concern and physician anxiety over litigation is wasteful and not cost effective. Tort reform is needed that cannot be overturned by state courts and judges (all of whom are lawyers). Without meaningful tort reform, getting costs under control will prove very difficult indeed . . . jomaxx and obi jo