Tort Reform: Does it Do What it Promised?
Every state in the U.S. wrestles with what is called tort reform. The term refers to efforts to limit payments to plaintiffs in personal injury and medical malpractice lawsuits, especially for non-economic damages, commonly referred to as “pain and suffering.” The thinking behind tort reform is that verdicts and settlements for individuals who were injured or to the families of those who died are just too large. The question, however, is, too large for whom?
Tort Reform Driven by Insurance Companies
Not surprisingly, the principal advocates of tort reform are insurance companies who are required to pay out when a verdict or settlement goes against an insured doctor, hospital or other medical provider. Some physicians and other medical providers are also proponents of tort reform, because they wish to limit the cost of malpractice insurance premiums and believe that putting caps on verdicts and settlements is the way to accomplish this.
What We Know About Tort Reform
One author suggests that there have been three major efforts to enact tort reform since the 1970s, and that we are still in the third wave. But we now know more than we did when the effort began in the 1970s. We know, for example, the most people do not sue after they have been injured by the negligence of a medical provider. This means that individual consumers, not medical providers and their insurance companies, bear the cost of these mistakes. In the words of this author, the problem is not too much litigation; it is too many medical mistakes.
We also know that increases in medical malpractice insurance premiums are not the result of increases in litigation by injured plaintiffs. Rather, the increase come from financial trends and competition within the insurance industry. We also know from statistical studies that large payments to undeserving plaintiffs are very rare.
One thing that often gets lost in these discussions is that medical errors are very common. By some estimates, there are more instances of medical negligence each year than car accidents and workplace accidents combined. Each year, at least 100,000 people die as a result of preventable medical errors. Again, the problem is not too many lawsuits; it is too many mistakes.
The Situation in Pennsylvania
And what of Pennsylvania? In the summer of 2014, one writer proclaimed that Pennsylvania was one of the “worst” states for medical malpractice, by which he meant that it was friendly to victims and there were no caps on non-economic damages. Nevertheless, Pennsylvania was also listed in the same article as having changed significantly in recent years where malpractice lawsuits were concerned. Venue reform, enacted in 2003, means that victims and their lawyers can no longer “shop” for the most favorable county in which to bring a lawsuit. Instead, they are restricted to counties where the defendant medical practitioner has an office, practiced or conducted business.
Another reform in Pennsylvania was the requirement that attorneys bring lawsuits certify that they have reviewed the facts of the case, consulted with at least one medical expert, determined that the plaintiff’s claim has merit. The purpose of this was to limit the number of so-called “frivolous” cases filed in Pennsylvania courts. Another recent change in Pennsylvania was a law that limits a defendant’s liability for only those injuries caused by the defendant.
Despite these changes, this author believes that Pennsylvania is one of the “worst” states for medical malpractice. From a different perspective, Pennsylvania is a state where justice is not limited for those harmed by medical malpractice.