Aug 12 2012

What’s New In Tort “Reform”? Nothing,Unfortunately.

Here is an update on Texas tort “reform,” which has gone too far, according to a local reporter. The state’s appellate courts are overturning verdicts for plaintiffs, and otherwise going out of their way to protect the pocketbooks of corporations dear to state commerce, like Walmart.  And with the draconian caps that have been imposed, the most seriously injured citizens of the state cannot find a lawyer who can afford to take on their cases.

Patients’ rights receive more respect in Missouri, where arbitrary caps on damages to victims of medical malpractice were recently struck down by that state’s supreme court. A local plaintiff’s lawyer explains the impact of the decision here.

In fact, one of most peristent fibs the tort “reform” movement uses to create hysteria around an imagined “medical malpractice crisis” is that without “reform,” there will be “runaway verdicts” giving undeserving plaintiffs “jackpot justice.”  Except things have not turned out that way.  The reality is that payouts have gone down.  That this is being reported by obgynnews is particularly meaningful.  OB/GYNs have always been considered risky to insure by medical liability companies, because when they provide subpar care resulting in injuries to infants, those injuries are often not only devestating, but life long in duration.

Unfortunately for consumers, the true sources of increased health care costs are often the health insurance companies all of us depend on, who raise premiums based on nothing more than the rate by which they would like to profit.  Bloomberg reports on how Assurant made a name for itself doing exactly that.


5 Comments on this post


  1. Anthony DiPietro said:

    Thank you for continuing to debunk these myths that are still being perpetrated by the medical malpractice insurance companies and their lobbyists. Without the fear of actually having to pay for their negligence, hospitals and doctors are free to hurt anyone they want and get away with it. A civil lawsuit is now society’s last line of protection to stop medical negligence.

    August 15th, 2012 at 9:30 am
  2. Dale Coy said:

    It is interesting to me how 95% of the blogs on tort reform are from trial lawyers who couch their protest in the last line of protection to stop medical negligence. If that were the case then these same lawyers would be taking these cases for less–in the name of justice–instead of refusing. I find it telling that doctors still treat patients with no insurance and expect not to get paid. What’s new in Tort Reform? A recently published novel Morton’s Fork spells out why tort reform is necessary.

    August 17th, 2012 at 12:43 pm
  3. Andrew Barovick said:

    Hi, Dale, and thanks for writing. I can’t speak for other lawyers and their feelings about tort “reform.” I do not see plaintiffs’ lawyers as the last line of protection from medical negligence. I think the most effective weapon against medical negligence is improving care, so that the mistakes do not happen in the first place. For instance, a couple of years back, NY Presbyterian Medical Center made huge, documented strides in enhancing OB/GYN care, which markedly reduced infant and maternal morbidity and mortality, and cut medical malpractice claims to almost none. But the program has been virtually ignored by other hospitals. NY Presbyterian’s own chief executive, whose name escapes me now, responded to those who called for its replication by saying that his had been an isolated program, and it was unlikely that such results could be attained again.
    We “trial lawyers” can’t do it all. As you point out, we cannot take on cases in which we will lose money, despite our appreciation for justice. Perhaps you are unaware that today, investing in a medical malpractice case by a lawyer such as myself can require $50-100K. Imagine having to do that for a drawerful of cases. And then imagine that because tort “reformers” have poisoned the consciousness of Americans with lies about “frivolous suits” bringing “jackpot justice,” the chances of winning at trial are slim. I’m sure you can appreciate the dilemma all of us face.
    I’d be interested to hear more about Mr. Fork’s book, and what you like about it.

    August 17th, 2012 at 3:40 pm
  4. Wayne Allen said:

    Actually, I would think that the last line of protection to stop medical negligence would be the licensing boards. Since however, they do not provide money to anyone (other than maybe to themselves in the form of fines), the discussion of whether or not they need reform to protect consumers seems to be lost!

    I’m also interested as to what qualifies a legislative act as “arbitrary”. Allowing a court to have unlimited power in any regard is a violation of the checks and balances that are supposed to exist between the branches of government. If the caps on damages (usually non-economic damages, which are inherently difficult to quantify by anyone, be it a legislator or a juryman) are too low, it would seem the most logical thing to do would be to raise the cap, not hand over supreme, unchecked power to the judicial branch and hope all goes well.

    August 17th, 2012 at 9:19 pm
  5. Andrew Barovick said:

    Thanks for writing, Wayne. I think licensing boards and play a positive role in weeding out incompetent or substance-abusing physicians, though, unfortunately, the system for disciplining doctors has never functioned well, and errs on the side of lax enforcement.

    The imposing of caps by legislatures is arbitrary when done in a manner that is not supported by reason, and is instead based on political expediency or a whim. Such caps ingore the complexity of the injuries that each victim brings to the courthouse, in a cynical attempt to force them into a “one-size-fits-all” mechanism that pleases the insurance companies, but usually denies appropriate compensation to the people who need it most.

    I think that raising caps is a step in the right direction, but I continue to see them as dangerous to the medical consumer. But they also infringe on the jury’s right and obligation to arrive at damages based on evidence that it sees and hears during the trial. Nothing about that process is unchecked, contrary to what the tort “reformers” would have you believe. Here in New York State, any damages amount that appears to be inflated and/or unreasonable may be challenged. If the amount is out of line with amounts that have been awarded in similar past cases, that amount will be reduced. This happens regularly, and also functions to increase awards when juries have undervalued cases.

    August 18th, 2012 at 5:55 am


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