Medical Malpractice and Tort Reform

Tort reform is something that most people have heard mentioned or discussed, but many individuals do not know what it actually means for those who have been harmed as the result of a doctor’s negligence. Those who advocate for tort reform claim that there are many people out there who are trying to get windfalls after being injured by a medical professional when the harm really is not that serious. Although there likely are some individuals who attempt to take advantage of a situation to get a larger settlement or award than may be necessary to compensate for the negligence that was done, most medical malpractice plaintiffs have suffered from serious harm and a legal action is necessary to make them “whole” or return them to the extent possible to the state that they were in before the medical negligence.

The Side of Tort Reformers

Arguments for tort reform, often made or supported by insurance companies, are based on the premise that a large number of medical malpractice cases are brought by people looking to get some quick cash. The basis for the clamor for change is that these “meritless” cases clog up the court system and cost lots of money, even if the blameless medical professional ultimately prevails. The final attempt at a coup de grace in the fight for tort reform is that these exorbitant costs are then passed along to individuals across the country who pay increasingly higher rates to obtain necessary insurance. Tort reformers also argue that high medical malpractice settlements and awards also cause doctors to leave the field. The fact is that most of these arguments fail based on the percentage of people who suffer from severe negligence and actually pursue legal action. Although a recent analysis of medical malpractice claims reveals that nearly 80 percent of the actions that are filed against doctors and other medical professionals do not result in payouts, the data is limited. The vast majority of the individuals who pursue a legal action to its conclusion rely on the compensation to return their lives to as close to normal as possible.

There are statistics that do show that many negligence actions are withdrawn or dismissed and that the majority of cases that do go to trial lead to a determination that the doctor or other medical professional did not do anything wrong. One of the reasons for this is the nature of medical harm. When a person does not get the outcome that he or she anticipated and, in fact, suffers from negative consequences after medical care, it is impossible to know whether the doctor made a mistake or there simply was a terrible side-effect or sub-optimal result. It is only through investigation, which often involves filing a claim to preserve a person’s legal rights, to determine the actual cause of the suffering.

Some Types of Tort Reform

Damage Caps

One of the most common types of tort reform is placing a cap, or upper limit, on medical malpractice awards. This reform has been adopted by many states throughout the country. It eliminates the total amount of damages that a person may receive, through limits on the overall award or non-economic damages.

Non-economic damages are awarded in recognition of the pain and suffering of the malpractice victim, as well as compensation for the loss of a person’s ability to enjoy the activities in which he or she engaged before the negligence. Non-economic damages also encompass loss of consortium, which is the legally recognized loss of the benefits of a family relationship, often between spouses. Depending on the jurisdiction, non-economic damages could also include punitive damages, which are awarded when the defendant is extremely reckless or acts in an intentionally dangerous manner.

If the cap is placed on non-economic damages only, then there is no restriction on the amount that may be awarded for lost wages, medical bills, necessary accommodations, and other out-of-pocket costs that are directly related to the harm caused by the malpractice. By imposing a cap, most states effectuate a system where doctors and other medical professionals pay less for malpractice insurance.

Changes to the Collateral Source Rule

One of the other ways that different states are reducing the amount of damages that are awarded in medical malpractice case is through changes to the collateral source rule. In many situations, a patient who is injured will receive payments from an insurance company before a medical malpractice case is fully litigated. The laws in most states had precluded this previous payment from being brought to the attention of the jury during consideration of damages. However, new laws being passed in some jurisdictions now allow for any previous payments to be disclosed during a trial, which may lead to a reimbursement of previous payments made by an insurance company. This disclosure is intended to have a limiting effect on the amount of money that a jury may award.

Limiting the Time in which an Action may be Brought

In each state, there is a statute of limitations that dictates the period of time in which a person who has been harmed by malpractice may bring a legal action. The running of the clock may start with the date of the injury or the discovery of the harm. Regardless of the length of that period, by reducing the time, it prevents some people who delay filing a legal claim from seeking help from the courts, even if the harm was severe.

The Fair Share Rule

In many states, there is joint and several liability, as opposed to comparative fault, where a doctor or other healthcare provider can be liable for all of a person’s damages, even if he was only partially at fault. As part of the overall tort reform movement, there is a push to impose limits where a medical professional only pays for the percentage of damages attributable to the allocation of fault that the trier-of-fact imposed. For example, if a person was found to have suffered $1 million in damages and the doctor was found to be 30 percent at fault, the doctor would be responsible for paying $300,000 out of the total award.

Tort reform looks at all of these options, as well as some others, as a means of lowering the costs for doctors and other healthcare professionals to obtain malpractice insurance, which in turn would translate into lower healthcare costs for consumers, in theory. However, these reforms lead to serious, and often overwhelming, restrictions on a person’s ability to recover damages after his or her life has been devastated by the negligence of a healthcare provider.

Stern Law, PLLC Believes that Every Victim is Entitled to Justice

Tort reform does a lot of harm to those who need the protections of the legal system in order to get the compensation necessary to pay bills and recognize the severe and long-term harm wrought by the negligence of a medical professional. At Stern Law, PLLC, our attorney has spent more than 30 years advocating on behalf of those who were harmed by a doctor or other healthcare provider. Our attorneys are passionate about fighting on behalf of our clients. In addition, we provide resources for those who have been impacted by medical malpractice, whether directly or as the family or loved one of a person who was harmed by negligence. We have people available to answer questions 24 hours a day, seven days a week for anyone who has a question or concern, regardless of whether or not you are our client. Call us at 1-844-808-7529 or fill out an online contact form in order to learn how we can help you get through this difficult time.