In the late 1990s, insurance companies and special interest groups banded together to lobby for legal reforms that would limit the power of juries to award damages against doctors and hospitals who carelessly injured the patients who depended on them. Using scare tactics and questionable statistics, the lobbyists convinced legislators that lawsuits against doctors and hospitals were the leading cause of rising health care costs and that many of these lawsuits were completely frivolous. In 2003, these lobbyists convinced the Texas legislature to pass sweeping “tort reform” legislation that has had major implications for valid claims involving health care liability and depriving many victims of medical negligence of their right to a jury trial.

What is tort reform?

A tort is a civil wrong that involves a physical, mental, or monetary injury caused on purpose or through negligent conduct. Some examples of torts include negligence, medical malpractice, and product liability claims. In 2003, Texas passed tort reform based on the promise that establishing caps and stricter standards for medical malpractice lawsuits would reduce the cost of healthcare and improve the system. Over 10 years later, the results prove that the legislature was wrong.

When tort reform was originally passed, one of the main arguments made by the lobbyists was that there were too many “frivolous lawsuits” being filed. They claimed these lawsuits were causing malpractice insurance rates to rise and doctors to start practicing more defensive medicine. Supposedly, this chain of events was causing the overall cost of healthcare to rise. In reality, this was not the case. There have been several studies that agree that only around one in ten cases of serious negligence or malpractice ever result in any type of legal action. Overall, only about 1% of all adverse medical events are met with any sort of legal action.

Healthcare lobbyists promised that instituting caps on noneconomic damages would lower the supposedly rising cost of malpractice insurance and the overall cost of healthcare. Since the reforms began, insurance premiums in tort reform states have only had a slightly slower growth compared to those in non-reform states (the lag is somewhere in between 6% and 13%). The new caps ended up shifting the responsibility for payment from the insurance companies over to Medicare or Medicaid and did not have an effect on the malpractice policy premiums or healthcare costs. A 2010 study, “National Costs of the Medical Liability System,” found that the cost of defending medical malpractice claims only accounted for roughly 0.3% of the total US healthcare costs.In fact, most malpractice insurance policies allow the physician that is being sued to decide whether a case is settled. Depending on the type of case and amount of the settlement, it may have to be added to a database. Many doctors will refuse to settle a lawsuit and instead have the plaintiff take their chances at trial.

Doctors practice “defensive medicine.” Lobbyists convinced legislatures that the doctors began practicing defensive medicine in order to avoid what they claimed to be a rising number of frivolous lawsuits. However, defensive medicine may not be motivated by medical concerns as much as the income it can generate for the physician. A recent study released by the New England Journal of Medicine dispels this myth. A team of five doctors and health professionals researched three states that passed tort reform measures to see if there is any difference in the way they practice when measures are in place to protect the doctors from lawsuits. The states they researched were Texas, Georgia, and South Carolina. The researchers found that those doctors ordered just as many tests and procedures as those in non-tort reform states.

In 2012, a study was released that examined how effective tort reform was on curbing spending. Researchers found that there was “no evidence of reduced spending in Texas post-reform, and physician spending rose in Texas relative to control states.” In addition, it was found that there was no evidence that spending in high-risk counties declined relative to those in low-risk counties. In fact, there was some evidence that supported increased physician spending in high-risk counties after the tort reform.

How does it affect me?

Healthcare can become dangerous without the proper guidelines and incentives. A 2012 report from the Institute of Medicine of the National Academies estimated that about one-third of hospital patients are harmed during their stay. Since the tort reform was enacted, doctors are more protected under the new regulations and have less incentive to improve patient safety initiatives. In 1999, the National Academy of Sciences published a seminal study that reports there are between 44,000 and 98,000 people that are killed each year due to medical errors. Health Affairs released a report in 2011 that estimates the actual number of avoidable deaths is now closer to one million. When healthcare professionals do not have an incentive to change, the results can be deadly.

The tort reform in Texas has also made it significantly more difficult for victims to seek compensation for malpractice or negligence due to the statutes of limitations, new procedural requirements, and damage caps. Many claims that were being pursued before the reform are no longer feasible to file because of the high expenses and low damage caps. Unfortunately, this leaves many victims unable to seek justice or compensation for their damages. For those that are able to file a lawsuit, they will be able to recover a much smaller amount than before due to the new damage caps. Because of these realities, there are significantly fewer attorneys that are still practicing in the medical malpractice or nursing home areas. This can make finding an experienced attorney that is willing to fight for you or your loved one even more difficult.

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If you believe that you or a loved one has been the victim of a medical malpractice, negligence, or abuse, it is important that you speak to an attorney immediately. Our attorneys have experience in all aspects of medical malpractice cases or nursing home cases and will fight for your rights. Call today for a free consultation – all calls are confidential.