Posted by John Ager on 04 March 2015.
The jury is no longer out. If the ardent supporters of tort reform are even a little bit intellectually honest, they must concede it’s true. That, even by the most conservative measures, tort reform has been a complete failure. Making it more difficult for victims of medical malpractice to get justice for the harm they suffer does not make our health care system cheaper, better or safer. Study after study have demonstrated as much. Now, even Forbes magazine, hardly a bastion of liberal thought, has recognized that tort reform has failed to bring about any of the promised fixes for alleged harm being caused by medical malpractice cases. You can read the article here.
I hate to say “I told you so,” but my partner and I have been writing about this reality for the past several years.
Tort reform has not reined in “out of control juries.” They were never out of control to begin with. So says the U.S. Justice Department which found the the median verdict in a medical negligence case was over 50% higher in cases tried to a judge rather than a jury.
It has not eliminated “defensive medicine” as I discussed here. The practice of defensive medicine is simply not a reality. Doctors in tort reform states order the same number of tests and perform the same procedures as those in states which have not enacted tort reform measures
It has not helped rein in “skyrocketing” malpractice premiums. In fact, medical malpractice premiums have risen at about the same amount in every state. More importantly, medical malpractice insurers continue to enjoy record profits and margins far greater than general casualty insurers. Greed, not lawsuits appears to be the driving force behind increases in medical malpractice premiums.
Not only has tort reform failed in its purported mission, it likely has stifled patient safety initiatives. As health care providers are repeatedly subject to the mantra that tort reform is a necessary and effective way to combat medical malpractice lawsuit abuse, they become less likely to consider their own patient safety initiatives that might truly help patients and reduce malpractice. There can be no reasonable dispute that fewer incidents of medical malpractice means fewer medical malpractice lawsuits. There also can be no dispute that millions of patients are harmed, and hundreds of thousands are killed, each year by medical negligence, at least if you believe that the New England Journal of Medicine is a credible source.
Of course there will always be those who don’t believe in science – those who will believe the world is flat, that we never landed on the moon, and that the Earth’s climate is not changing, regardless of the quantity or quality of proof to the contrary. I won’t be surprised to see politicians continue to ignore the reality of tort reform and continue repeat the talking points which, unfortunately, so many Americans have erroneously come to believe