Taking Sides

A Case for Tort Reform

By  Alan G. Thorson, MD, FACS

Tort reform is complex. But, like many complex problems, can be simplified by studying individual components. In general, reform results in the correction of faults, problems or inefficiencies (shortcomings). When goals are not met, shortcomings leading to failure should be identified. When shortcomings are identified, they should be corrected.

The need for reform can be determined by the failure to meet goals. The process of reform is the identification and correction of root causes for that failure.

Tort refers to a non-criminal act that wrongly causes harm to someone and is dealt with in a civil court. Liability is the state of being exposed or subjected to some contingency or reaction. In the case of tort, it is exposure to an adverse reaction resulting from an alleged harmful act that we are held responsible for. We are all liable for such acts and exposed to such reactions daily. The acceptable balance between such acts and subsequent reactions is defined by law and interpreted by our courts.

Is our tort system adequately meeting society’s objective to maintain this balance? Reasonable goals of the tort system for medical liability might include the appropriate compensation of patients who have sustained injury, loss or damage as a result of a health professional’s failure to exercise an appropriate degree of professional skill in rendering medical treatment. That compensation should be provided by efficient, cost effective means.

What really happens? Data from the Physician Insurers Association of America (PIAA, 2009) show that in 2008, 65 percent of medical liability claims were dropped, dismissed or withdrawn, 25.7 percent were settled, 4.5 percent were decided by alternative dispute mechanisms and 5 percent went to trial, where the defendant prevailed 90 percent of the time.

The same database shows that average defense costs per claim were $40,649,

ranging from $22,163 among dropped, dismissed or withdrawn claims to more than $100,000 for claims going to trial.

In a review of closed claims, no injury occurred in 3 percent. In 37 percent, there had been no error in medical practice.1 The same review showed that 27 percent of claims that did involve errors were not compensated while the same percentage of claims that were compensated did not involve an error. Earlier research that matched claim level data with hospital records was similar; only 15 percent of patients who suffered a negligent injury filed a claim, while negligence had occurred in only about 15 percent of claims that were filed.2

What’s the bottom line? The current system is costly and matches injured patients with deserved compensation poorly. Goals are not being met. We need to identify the shortcomings and then correct them. It is time to start the process of reform in a meaningful way.

Details of proposed reforms are far beyond the scope of this discussion. However, one aspect has particular expediency within the context of health care reform and deserves mention. Evidence-based medical practice has the potential to change health care reform from a costly expansion of services to a model for savings. To accomplish this, we must provide a safe harbor for doctors who follow evidence-based guidelines, leading the way for decreased costs associated with defensive medicine.

Medical liability can serve as a model to address the broader question of tort reform in our society. The American Bar Association asserts a “goal of seeking a broader consensus on how more equitably to compensate persons injured in our society.” It further states that, “problems associated with medical professional liability are common to all areas of tort law and should be evaluated in the context of their broader implications for the tort system as a whole.” (ABA Policy on Medical Malpractice, April, 2006)

Medical liability reform could play a leadership role in making our entire tort system more responsive to the needs of society as a whole.

Dr. Alan G. Thorson is chair of the Professional Liability Committee, Nebraska Medical Association. He is a clinical professor of surgery for Creighton University School of Medicine and University of Nebraska College of Medicine
1. Studdert, David M. et al. “Claims, Errors, and Compensation Payments in Medical Malpractice Litigation.” NEJM. 2006; 354: 2024-2033.
2. Weiler et al. A Measure of Malpractice: Medical Injury, Malpractice Litigation,and Patient Compensation (Cambridge, MA: Harvard University Press, 1993)
 

Taking Sides

A Case against Tort Reform

By Professor Michael J. O’Hara, J.D., Ph.D.

Orwellian doublespeak and doublethink permeate much of the discussion of tort reform. The purpose of doublespeak is to support and implement doublethink. In short, vocabulary sculpts thought.

The vocabulary of “tort reform” is deliberately chosen to be subliminally persuasive.

coffee on the “klutz?”

Do you think that question exemplifies what is wrong with tort law? If so, then it’s quite likely you’ve just experienced Madison Avenue’s success in sculpting your mind.

Did you know that coffee caused third-degree burns requiring multiple skin grafts and months of medical treatment? Is that what happened to you the last time you spilled hot coffee on you? That coffee was not merely reasonably hot. It was scalding hot. So hot the seller ought pay for the hundreds of thousands of dollars of medical bills caused by the seller’s negligence.

Who’s at fault? The klutz for the spill; and, the seller for coffee so hot it chars skin.

moneygrubbers (unlike multi-national corporations that sell defective products or their insurance companies)

They play fast-and-free with the truth. You might even call it jury tampering. Artful advertising by trade associations a la calls to talk radio and letters to the editor of newspapers sculpt the mindset of “the public” so that folks who might be called for jury duty arrive for service predisposed to believe particular falsehoods.

Sure, it’s free speech, but is it morally pure? Legal doesn’t necessarily mean ethical.

Most folks don’t spend much time thinking about what is an ethical profit. Most folks get by just fine with profit defined as total revenue minus total cost. But I am an academic whose education is in the law and in economics. It’s my job to think about what is an ethical profit.

Sure, by stealing I can increase my revenues and decrease my costs. An ethical profit, then, requires a definition of stealing. And defining stealing is the crux of the question of tort reform.

A tort is a civil wrong — like if I cut off your arm without your approval and without using anesthetic (let’s say in a car accident). Clearly there’s a cost, but who’s to pay — the defendant or plaintiff? And how do we allocate the ownership of your severed arm?

A lawsuit answers questions of fact. What was the cause? Who was responsible for that cause?

These questions of fact are decided by a jury of your peers. Not the government. Not the corporations. The People make those decisions. Are the proponents of “tort reform” telling a half-truth when they do not stress that tort reform necessarily involves a massive loss of liberty via a massive transfer of power from The People to the government? Why would somebody who buys lobbyists by the ton fail to mention that?

oppose government price controls on the things they sell. Is it half-truth hypocrisy for “tort reform” proponents to demand government-enforced price controls on the inputs they purchase, i.e., putting a cap on liability? Doublespeak.

To them, “a jury of your peers” is just a bunch of fools who are not to be trusted with finding facts — like how much pain and suffering you experienced when I cut off your arm.

Forewarned is forearmed. An open mind is the best defense against the doublespeak of “tort reform” proponents. The originators of this doublespeak are morally culpable. They hire Madison Avenue suits to thwart your ability to express thoughts.

Please, speak carefully and purposefully. Avoid their buzzwords. Sure, you may at first be at a loss for words. But that’s good.

Dr. O’Hara is a professor in the College of Business Administration’s Finance, Banking, and Law Department.