The Enduring Myth of Medical Malpractice Reform

Sometimes it seems like the drive to control the amount of damages awarded for medical malpractice is on some kind of political message loop. Often called “tort reform,” it frequently is fodder in election campaigns, and is always a popular lawyer-bashing topic at cocktail parties. One state or another is always considering capping the amounts that can be paid as a consequence of somebody’s medical error with the justification that it will prevent frivolous lawsuits, hold medical malpractice insurance costs in check and reduce health-care costs for everyone. None of which is true, but when it gets said over and over, the false message gains some traction.

We’ve written about the constitutional protection that these efforts threaten, about the myths of malpractice caps and the irrational fears behind them. Now a new study by Public Citizen, a nonprofit consumer interest organization, puts the lie to all the folks who think limiting your damage recovery rights would enable the delivery of better and more cost-effective medical care.

“Medical malpractice payments were at their lowest level on record in 2011,” the report concludes. “But, contrary to the promises of policymakers and leaders of physician groups who have spent the past two decades championing efforts to restrict patients’ legal rights, there is no evidence that patients have received any benefits in exchange for ceding their legal remedies. Instead, the evidence suggests that litigation restrictions have suppressed meritorious claims, forcing malpractice victims and ordinary patients to absorb the costs of treating injuries caused by uncompensated medical errors.”

Tort reform measures such as overriding jury damage awards with legislative caps, did nothing to lower health-care costs. They have done absolutely nothing, the study says, to protect patients. As summarized on using figures from the National Practitioner Data Bank, the overall value of all medical malpractice payments made last year accounted for only 1/10 of one penny of the nation’s health-care costs. The payments fell for the eighth straight year, despite some claims that medical malpractice costs were on the rise.

From 2000 to 2011, the report said, health-care costs in the U.S. almost doubled. During that period, the value of medical malpractice payments fell by about 12 percent. Public Citizen found that 8 in 10 medical malpractice claims that ended in payment resulted from patients who suffered death, catastrophic harm or serious, permanent injury.

Texas is the poster child for tort reform and all the good its advocates promise. In Texas, medical malpractice reforms, including a $250,000 cap on noneconomic damages, were initiated in 2003. Since then, malpractice payments made by doctors have declined 65 percent. But what about what patients pay? Health insurance premiums have increased faster in Texas than the national average.

The Journal of Empirical Legal Studies supported Public Citizen’s analysis of the situation in Texas. It concluded that the “accumulation of recent evidence finding zero or small effects suggests that it is time for policymakers to abandon the hope that tort reform can be a major element in health-care cost control.”

So the next time you hear the clarion call of tort reform as a way to improve medical care and control costs, consider the source. Invariably, it’s someone whose interests are about patient care and safety the way a great white shark’s interest is baby seal conservation.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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