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    Who benefits from tort reform?

    Medical liability tort reform seems like the American medical community’s own recurrent syndrome. Every so often, for reasons that aren’t always clear, tort reform bubbles up as a crisis.

    Typically, the trial lawyers say that in fighting tort reform, all they want to do is protect patients against negligent physicians.

    The physicians line up on the other side and respond that in pushing for tort reform, they’re the ones who are trying to protect patients from having to pay for the spiraling costs of malpractice insurance, or even from a lack of access to healthcare.

    Maybe some laws get passed, the shouting dies down, and the issue disappears as quickly as it arose—until the next time.

    A cyclic disorder

    Every decade or so since the 1970s tort reform has resurfaced as a major issue, says Keith Hebeisen, a partner at Clifford Law Offices in Chicago, and chair of the American Bar Association’s standing committee on medical professional liability. These crises, he says, are driven by lobbyists for the insurance industry, “using the doctors almost as a front group.”

    Over the past 3 decades, every 6 to 10 years would see a huge increase in malpractice insurance premiums, sometimes up to 100%, says Edmund Funai, MD, professor of obstetrics/gynecology at Ohio State University (OSU) in Columbus, Ohio, and chief operating officer of the OSU Health System. “There are lots of theories about why malpractice insurance rates are as high as they are,” says Christopher Bernard, partner at Koskoff, Koskoff & Bieder in Bridgeport, Connecticut.

    Insurance cycles of hard and soft investment markets drive, in part, the periodic crises over tort reform, he says, but he also notes that medical malpractice insurers have the highest profit margins among all insurers.

    And through these recurrences the tort reform debate hasn’t changed notably in recent years, contends attorney Alice G. Gosfield of Alice G. Gosfield and Associates in Philadelphia, Pennsylvania, a Medical Economics editorial consultant,

    Still, there might be reason to hope that this decades-long issue is evolving toward more productive approaches. If there are no breakthrough therapies, in other words, maybe we can hope for better palliative treatments. For example, some new research sheds additional light on the complexities of medical malpractice litigation and its costs.

    Along the way, we’ll look at two major disconnects: between tort reform and healthcare reform, and between tort reform and how physicians perceive the risk of litigation.



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    • Dr. Gus Geraci
      Not all lawyers are good and bring "good suits." I've been sued as a physician three times, and dropped all three times because they were not "good suits." But being dropped took several years, during which defensive medicine was very much practiced, and continues to this day. Not all physicians are good, and some may deserve to be punished for real malpractice, but then why do virtually all lawsuits conclude with payment and sealed judgements? IMHO: Stop making a lawsuit like the lottery. If you buy enough tickets, you might hit the "big one." For attorneys, that means paying flat rates for time and expenses, not a percentage of the "win." For patients, cap "pain and suffering" at a level that is punishing, but not a lottery win. Allow apologies and legitimate expressions of sympathy without fear that an attorney will twist your words to make it seem like you admitted fault. Create malpractice/health courts that make the decision, not an uneducated jury. It is clear to me the tactic of showing a jury of ordinary people an unfortunate patient (often a baby) and implying "someone has to pay for this care," will sway a jury into awarding dollars when no malpractice has occurred. Create a no-fault system, where care for bad outcomes is covered, and the malpractice court is not the only way to pay for care. And allow for a separate health court hearing about genuine malpractice, where the decision is how much if any of the maximum amount allowed for "pain and suffering" will be paid and what remedial action, education, additional training or other needs to occur for genuine malpractice (up to and including termination of license) needs to occur. The current system allows recurrent genuine malpracticers to continue to practice - as long as someone pays.
    • Anonymous
      Caps on non-economic damages do not in any way limit payments for actual harms done to patients, as implied in this article. In addition, we need a loser-pays tort system like every other western democracy has, in which a losing plaintiff must pay the legal fees and court expenses of a defendant physician who is found not guilty of malpractice. This would force aggressive plaintiff attorneys to think twice before filing a non-meritorious lawsuit as a tactic to extract a "nuisance" settlement from the physician's malpractice insurer. California's MICRA law does not mandate loser-pays, as I learned when I was dropped from a frivolous lawsuit after being deposed, but my malpractice rates went up anyway because my insurer had to pay $20,000 in legal fees for my deposition alone.
    • Anonymous
      TWO CHOICES: Defensive medicine to protect yourself from missing the rare disease or spend 4-5 years defending the fact that it is a rare disease. The test (former) is easier and more conducive to good mental health!!

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