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Bret Hanna
Bret Hanna
Attorney • 435-649-2525

Tort Reform and Unintended Consequences


Medical care providers are people and people make mistakes – that’s it, plain and simple, and the facts can’t be disputed. An editorial which appeared this week in the Salt Lake Tribune offers the following statistics:

The other side of the coin is that doctors and hospitals regularly kill people through their negligence. In 1999, the Institute of Medicine of the National Academies reported, "Based on the findings of one major study, medical errors kill some 44,000 people in U.S. hospitals each year. Another study puts the number much higher, at 98,000. Even using the lower estimate, more people die from medical mistakes each year than from highway accidents, breast cancer, or AIDS."

Tort reformers, however, love to sweep such statistics under the rug and focus on things like so-called defensive medicine." MedicineNet.com defines this as:

Defensive medicine: Medical practices designed to avert the future possibility of malpractice suits. In defensive medicine, responses are undertaken primarily to avoid liability rather than to benefit the patient. Doctors may order tests, procedures, or visits, or avoid high-risk patients or procedures primarily (but not necessarily solely) to reduce their exposure to malpractice liability. Defensive medicine is one of the least desirable effects of the rise in medical litigation. Defensive medicine increases the cost of health care and may expose patients to unnecessary risks.

A debate rages about whether defensive medicine is a statistically significant problem but if it is, the doctors who practice it should be hiring lawyers – not medical malpractice defense lawyers, criminal defense lawyers. If they are ordering tests, procedures or care visits to reduce their exposure to malpractice liability, they are violating the Hippocratic Oath and committing insurance fraud because they are being reimbursed for unnecessary care.

In any event, tort reformers have successfully sold their "we need caps on damages to reduce malpractice insurance premiums and to reduce defensive medicine" bill-of-goods to a number of legislatures including the one here in Utah. We have a draconian Governmental Immunity Act, with a one-year notice of claim requirement and a total damages cap that shields every governmental medical provider and facility, from the smallest rural county hospitals to the giant University of Utah Health Care system. For those medical providers not so protected, we have a short two year statute of limitations, a mandatory pre-litigation review process that can add up to a year to the litigation process, and caps on general damages.

There is no evidence that these "reforms" have had the intended effect – malpractice insurance premiums are dictated by how well insurance companies are doing in the stock market, not how much they pay out in claims. And doctors still claim that they worry about being sued and practice medicine in response. So much for the intended effects, but what about what may not have been intended?

Again, people are routinely injured and killed by the negligence of medical providers. These people, who could be you, your family members or your friends, are entitled to recover for the real economic, physical and emotional losses associated with such deaths and injuries. Not surprisingly, people who have been victimized by medical negligence focus first on grieving the loss of a loved one or, for those not killed, getting better if they can. Figuring out how to deal with their losses by examining potential remedies often comes down the road.

In many states, such as Utah, that natural time lapse can pose real problems that may undermine those remedies. Medical malpractice cases are complex and time intensive. And they are expensive – very expensive. Attorneys who help the families of the dead and the injured only get paid if there is a recovery. And they can invest tens of thousands of dollars of their own money on costs associated with getting a case to resolution. These economic realities dictate that only meritorious cases be pursued, but it takes time to figure out which cases have merit and which do not. Medical records must be gathered which can take months. Once gathered, records must be reviewed by a qualified expert to determine if there was negligence which caused an injury for which a legal remedy is available.

With such short time lines for pursuing claims, however, lawyers representing the injured are often forced to file notices of claims and other documents to initiate claims before a full detailed analysis of all of the potential players and elements of various claims can be completed. If they don’t, the claims of their clients may be barred. The result is that some cases may be dismissed voluntarily down the road, or individual providers may be let out of a case, because after there is time for a full vetting it turns out there is not a good case against them.

Medical providers complain all the time about a "shotgun" approach to medical malpractice cases – pursue everyone in sight for everything under the sun and sort it out later. But that is not what is happening. Attorneys representing victims are making the best decisions they can and taking the steps necessary to protect the rights of their clients before they are lost. If they are forced into initiating a claim because of deadlines and they later determine that they don’t have a strong case, they do the right thing and end the process. Such unintended consequences of tort reform should not be replicated with the imposition of additional limitations on access to justice.


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  1. Mike Bryant says:
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    Very good points as to what justice isn’t and what it needs to be. The rhetoric continues to grow and it’s the Rove/Bush bashing the lawyers, reaching the height of the big lying report on the premium increase.

  2. Michael Kirsch, M.D. says:
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    The irrationally rising medical malpractice premiums in Ohio finally cooled off once tort reform with caps was deemed constitutional. Defensive medicine is real and cannot be avoided under the current system where fear of litigation hovers over every physician. I too want negligent acts targeted and the injured patients to be properly compensated, but not at the expense of innocent physicians who are routinely ensnared in the wide legal net that is used. Please visit my blog at http://www.MDWhistleblower.blogspot.com under Legal Quality. I know your arguments well. Many lawyers in my family.

  3. Mike Bryant says:
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    I did drop in and read your first article and while it’s just a part, I found this interesting:

    “Would they defend the current system as vigorously as they do now if it didn’t enrich them personally? Using my colonoscopy example above, if we created a tort system that provided more fairness and justice to the parties involved, would lawyers support it if their incomes would suffer as a result?”

    Yes, there are many lawyers in this issue that don’t do med mal, but more importantly, isn’t that same question one that should be asked of the doctors? Your whole post talks about what it costs the doctors. Nothing wrong with being paid for your work, but it’s hypocritical to say that lawyers are the only ones in it to be paid.
    Read the posts here at IB, look at how many involve helping people, making people safer, how not to get injured, all of those things lead to less cases. A safer medical system that kills less people, makes for less cases. So, the answer to the second question is easy.
    Tort reform “works ” in state because lawyers stop taking many cases, bigger cases are inadequately compensated , and more consumers go without a remedy. That works for who? The insurance companies and the small number of doctors who do most of the damage.
    Minnesota has low premiums, low number of claims and great heath care, with no caps. Looks like the way to go for the consumers.

  4. Mark Bello says:
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    I am often amazed how doctors get away with billing and receiving money for practicing “defensive medicine”, while blaming everybody’s favorite whipping group, the trial lawyers. Talk about “unjust enrichment”! Contrast this with the trial lawyers, who do what they do contingent upon recovery; they do not spend money unwisely; they do not take cases without merit; they pursue bad doctoring at their own expense. Without trial lawyers, medical malpractice, already a serious problem, would be an even more serious problem. Why won’t doctors worry about bad doctoring in their midst rather than large judgments (by policing their own); if they did, there would be less large judgments. Caps on damages will not solve the problem of bad doctoring; it will only make it cheaper for bad doctors and their insurancce companies to continue to be bad doctors, maiming, disabling and killing people. To re-quote the Trib in its excellent article: “more people die from medical mistakes each year than from highway accidents, breast cancer, or AIDS.” That is a very compelling statement and it should scare the hell out of any non-physician tort reform advocate. Bret: Thanks for this thoughtful and eye-opening post. Wake up America, before you give away all of your rights to corporate, big pharma, and medical interests.

  5. Steve Lombardi says:
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    Bret, good article and reasoning and I’m thankful for the Doctor’s comments. I’ve made this offer before and I’ll make it again. Dr. Kirsch if you’ve got names and instances of actual “defensive medicine” I can make us richer than you’d every imagined. I mean it, I’m not kidding. The idea of this thing called “defensive medicine” seems irrational to me, but if you can prove it we are “in the money”. Are those people promoting the idea of defensive medicine saying they have names of actual doctors and instances where unnecessary tests were ordered, conducted and paid for by insurance companies? Wow this is great! I can’t wait. Because what they are saying is that defensive medicine is just a fraudulent scheme sort of like welfare fraud. It would be similar to charging for services that aren’t necessary and getting paid just for the paper work. I can’t believe the medical service providers are admitting this publicly. This is unusual that anyone, let alone an entire profession, except defense contractors, would publicly acknowledge wholesale fraud! Exceptional, this might qualify for Letterman’s Stupid Pet Tricks. More than simply intellectually dishonest it would be a fraudulent scheme subjecting them and all other medical service providers involved to criminal RICO charges. (Sort of like the Mob.) And that’s 3x’s the damages! Can you believe how rich we are going to be? As a tax paying citizen I want to know who these defensive medicine people are; but more so I want a piece of the action when we get the real names and cases, because the government whistleblower suit to recover the billions (the tort reformers keep talking about) is going to make me one rich citizen lawyer. So let’s have the names and tests fraudulently performed and paid for because we need to first talk about recovery and not future savings. Wow, I can’t wait! Barbara we can buy a Rock Band bus and head into retirement! Pack our bags! We’re soon to be rich off of something called “defensive medicine”!

  6. Steve Lombardi says:
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    Barbara and I were just talking because NPR is discussing this subject today. Some guy calls in and says we need tort reform that does away with medical lawsuits when professional mistakes happen. Oops! Sorry. But see ya. As a lawyer I want a free pass from all of my professional mistakes. I want tort reform too. That way I can stop doing all of that “defensive law” research. If you give me tort reform from being professionally responsible I’ll be happier, I’ll smile more at my clients, I’ll charge them less for legal services (not really) and I’ll be able to handle increasing case volume. Volume will be my middle name. I’ll replace the former middle name I used to use; it was “Quality”; with volume. Everyone will benefit because you’ll get more for less. Well not everyone I guess. Those clients whose cases I’ve messed up won’t benefit but so what I will and isn’t that what counts? Of course I’m being facetious, but listening to me doesn’t it make your skin crawl with how greedy it sounds.

  7. Michael Kirsch, M.D. says:
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    Here’s what I think we all agree on. The medical profession has not adeqately monitored its practitioners for quality deficiency. There is a white coat ‘wall of silence’. Patients who are true victims of negligence should be compensated. Physicians who perpetrate these acts should be sanctioned. However, these issues must be viewed in a greater context. The current system misses the majority of negligent physician acts. More innocent physicians are brought into the legal system than guilty ones are. Innocent physicians ensnared in the legal system can be trapped there for months or years. This is personally agonizing, expensive and adversely affects how we view patients subequently. It breeds cynicism in our profession. In my view, and now the Congressional Budget Office, it is directly responsbible for billions of dollars of defensive medicine. I realize that caps on non-economic damages will harm some deserving individuals. But the context and the greater good needs to be considered. I invite readers of this blog to comment on http://www.MDWhistleblower.blogspot.com under Legal Quality category, so my readers can be exposed to a diversity of opinion.

  8. Jim O'Hare VP medmal claims says:
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    It is the cost of healthcare that is the problem. Defensive medicine could actually lead to a diagnosis that could be missed in an efficient HC system. Suppose defensive medicine was 30% cheaper than it is now. Would anybody care?

    Sick people are the fuel of the Aetnas of the world. Sick people means profit. Do the HMO’s provide HC? – No they dont. They are just a brokerage with a 35% commission. Uncle Sam provides care for 5-6% overhead. Shouldnt this be embarrassing to US Healthcare?

    When was the last time we cured anything? There is no money in it, but treat and perpetuate the symptoms, now there is some real money there.

    Quit focusing on the matches, its the arsonists!!
    REgards jim

  9. Gerry McGill says:
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    In a 37 year legal career the only medical malpractice cases I have ever handled were from the defense side representing doctors and hospitals. When I decided to represent only injured people I also decided not to take any medical malpractice cases because I needed the doctors help in helping my injured clients (and their patients). Despite this I am treated as a pariah by some of the medical establishment because I am a plaintiffs’ trial lawyer.

    My experience in handling defense medical malpractice cases convinced me that insurance companies and not trial lawyers are responsible for ever increasing malpractice premiums. By demonizing lawyers the insurance companies have duped doctors into paying whatever whatever premiums are arbitrarily demanded. Lawyers and doctors need to work together to get the insurance companies in line.

  10. jim o'Hare says:
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    Dear Gerry – there are currently 20+ insurance co’s that provide PL coverage for Docs in Fl. The market is very tight. no arbitrary premiums out there competition has worked along with reform to reign in costs. The same needs to be done with healthcare. healthcare is a moral issue floating on a bed of money. It discriminates the haves from the havents. As long as they keep everybody sick and maintain gross premiums, profits will always trump treatment.

    I have always respected the plaintiffs bar 90% of the time. The competition for rates is very high and the rates have gone down 5 years in a row post reform. It is HC’s turn in the barrel
    regard sJim