Steve Cohen Contributor – Forbes
On Tort Reform, It’s Time to Declare Victory and Withdraw
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“The greatest trick the Devil ever pulled was convincing the world he didn’t exist.”
Verbal (Kevin Spacey) in The Usual Suspects
The second greatest trick may be the insurance industry’s success in getting more than half the states to implement “tort reform.” That achievement was based on the promise that restricting victims’ ability to bring medical malpractice suits would improve healthcare and reduce its cost. Those myths have now been completely dispelled.
The last bubble to burst was that because doctors are fearful of getting sued, they practice “defensive medicine,” prescribing unnecessary and costly tests and procedures. That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.
This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”
None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent. Perhaps the most telling fact is that the Department of Justice found that the median med mal award in jury-decided cases was $400,000. In bench trials, where the judge also serves as the jury, the median award was $631,000.
The tort reform boom started in 1975 when California imposed a $250,000 cap on the amount victims of horrendous negligence could collect. More than half the states followed with their own measures capping damages, reducing the amount of time victims had to discover and bring a lawsuit, and even limiting the amount of money lawyers could be paid for representing clients.
The latest blockbuster revelation looked at the impact of tort reform restrictions implemented in three states over 10 years ago. Texas, Georgia, and South Carolina passed legislation that made it virtually impossible to sue doctors or hospitals for emergency room treatment. The study examined 3.8 million emergency department visits at 1166 hospitals between 1996 and 2012.