The Trouble with Tort Reform

January 26, 2015 | Crandall & Pera Law
The Trouble with Tort Reform

Elected officials and media pundits love to argue about tort reform – namely, that this country needs it in order to secure the livelihoods of competent doctors. One of the most common arguments is that the practice of “defensive medicine” – where doctors order excessive tests to ensure they screen a patient for every possibility, no matter how remote – is driving up the cost of medicine; the other main argument is that the litigious nature of Americans is forcing doctors to close their offices, because their medical malpractice insurance is too high.

There are numerous problems with both of these arguments. First, a “tort” – a wrongful act against a person for which another person or entity may be held liable – in and of itself implies that the doctor has committed an error. People who make mistakes should be held accountable for those actions. However, “Tort” Reform interferes with a person’s right to hold accountable an individual or entity who has wronged him or her.

Second, the legal system already has in place many safeguards to protect against frivolous lawsuits. In order for a case to be brought, a medical malpractice attorney must have evidence of:

  • Duty, or what the accepted standard level of care is

  • Breach, that your doctor failed to provide that accepted level of care

  • Causation, that your injuries or illness were a result of a breach of duty

  • Damages, which are your medical bills, lost wages, and your pain and suffering, all of which were a result of your injuries

If these four areas cannot be proved, a lawyer cannot ethically bring a medical malpractice lawsuit in Kentucky or Ohio. Thus, lawsuits that are brought against a doctor or hospital must be based on evidence of wrongdoing by a doctor or hospital. If someone commits a wrongful act, it only makes sense that they should be held accountable for their actions.

Finally, there is no real proof that “defensive medicine” is cost-prohibitive to hospitals. A study in the Journal of the American Medical Association found that “completely defensive hospital orders accounted for just 2.9 percent of the costs, mostly because of additional days of hospitalization,” according to the Washington Post.

What “tort reform” really means to most legislators is placing a limit, regardless of the severity of the injury, on the amount of money a victim may obtain. Kentucky, to date, has protected victims’ rights to receive full compensation for their injuries, but Ohio, unfortunately, has not: the most a plaintiff can recover is $1 million, and that is only in cases of catastrophic injury.  However, both Kentucky and Ohio allow for punitive damages, which are monetary “punishments” for people who have hurt someone else. In Ohio in the case of medical malpractice, a plaintiff may also be granted $300,000 in non-economic damages, but a jury may award the victim another $3 million in punitive damages. Because punitive damages are rarely awarded, lowering the available compensation to victims of medical malpractice only serves to protect negligent doctors without regard for the injuries caused by their malpractice.

Protecting victims is our top priority

Tort reform is not about reform: it is about protecting the rights of doctors and hospitals at the expense of the rights of victims. For more information about tort reform in Kentucky or Ohio, we invite you to contact Crandall & Pera Law. We can help you understand the effects tort reform will actually have on victims.