How Not to Fix Medical Malpractice Tort Law, According to a Surgeon

Politicians and lobbyists are pushing for medical malpractice tort reform all across the country. Namely, many representatives want to put a compensation cap on damages a plaintiff can receive. While this is clearly a gouge against medical malpractice lawsuits, it is being advertised as a way to lower healthcare costs, which have been raised due to too many lawsuits for malpractice, if you believe the politician’s arguments.

Even though capping compensation would benefit doctors, practitioners, surgeons, and other medical professionals, not all of them think this is the right way to reform medical malpractice torts. Jeffrey A. Singer, a general surgeon out of Phoenix, recently posted an interesting article on CATO Institute that discusses his point of view from the defendant’s side of the issue. (To read the article in full, you can click here.)

In his article, Singer discusses that the culture of medicine today is centered on using expensive and redundant tests and technical diagnoses. Not only does this help pinpoint the problem but it also lowers a doctor’s own liability in case of an error. Furthermore, medical professionals and patients rarely discuss the actual cost of procedures since the money is coming from an invisible third party: the insurance company. Sticking a cap on compensation awarded for punitive damages would not reasonably make a noticeable impact on healthcare costs in this regard.

Multiple Studies Argue Against Healthcare Tort Reform

Acknowledging that his own opinion as a surgeon could only go so far and know so much, Singer discussed several key studies that support his own argument. A National Bureau of Economic Research study used a sample group of 10 million people over the course of nine years to see how similar tort reforms impacted healthcare premiums. It found that self-insured companies only saw about a 1.5% cost reduction, and companies that offered commercial insurance policies saw no difference whatsoever. A Journal of the American Medical Association (JAMA) study back in 2014 reached a likewise conclusion.

Recently, in 2016, Professor David Hyman of the University of Illinois worked on and released two studies of his own. The first examined the actuality of lessened costs due to compensation cap; once again, the difference was negligible. The second anticipated whether or not doctors would really leave states with no compensation cap to work in a state that did have such caps. There was no predictability of a “doctor migration” by any test models.

The list of relevant studies with the same conclusions goes on, and, indeed, Singer did discuss several others in his article for the CATO Institute. The truth remains after so many inspections that limiting the punitive damages a plaintiff can collect in a medical malpractice case will not feasibly or predictably drop healthcare premiums. The only likely surety is that medical malpractice incidents will rise as institutions and professionals start to lose their fear of making a critical mistake.

Is Tort Reform Unconstitutional?

Skirting away from the financial aspect of medical malpractice tort reform, Singer next addressed the question of whether or not it should even be allowed by legal standards. He concluded that since nearly all acts and lawsuits of medical malpractice occur within just one state, the decision to cap or not to cap should remain on a state level. By suggesting that compensation caps should be something controlled by federal jurisdiction undermines a state’s own rights to govern itself.

Singer concludes his article with three clear points:

  • Medical malpractice tort reform decisions should be up to the state.
  • The effectiveness of reform is highly overrated.
  • Reforms can most likely be argued as unconstitutional.

As leading medical malpractice attorneys in Peachtree City, our team at Webb & Taylor, LLC is keenly interested in seeing how tort reform pans out, if it does at all. Be sure to visit our blog frequently to check for more important news updates about this current topic. If you need our help with a medical malpractice or personal injury claim of your own, you can contact us and set up a free consultation, during which we can discuss the key details of your case.

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