Final Paper

Tort reform has been widely discussed in both a federal and state legislatures.  The legal system for controlling and reducing medical malpractice is not believed to be effective at reducing medical malpractice or rightly compensating victims (Tan, 2009).  The price of medical malpractice premiums has risen, increasing health care costs over all.  Many law makers agree that the traditional tort system fails both medical practitioners as well as patients (Pozgar, 2012).  Medical practitioners resort to practicing defensive medicine, which can lead to under-treatment, by not ordering high risk test or treatments, or overtreatment, when the tests and treatments ordered are excessive (Pozgar, 2012).

            Currently, the problems with the tort system present both difficulties for plaintiffs and defendants alike.  Firstly, it is difficult for patients to proceed through the tort system (MacCourt et al, 2009).  They may have difficulty obtaining an attorney depending on the strength of their claim due to the contingency fee structure (Tan, 2009).  The system does not distinguish between injuries caused by malpractice opposed to injuries caused by the normal risk of treatment (MacCourt et. al, 2009).  Thus, there is a lack of consistency in the current tort system because not all injured claimants are awarded compensation equally (MacCourt et. al, 2009).  The current tort system may discourage some physicians from practicing high risk aspects of medicine because it increases their risk of litigation (Stewart et. al, 2012).  Society needs physicians to practice high risk specialties, so it is important that they are not driven out of a profession that benefits their community because the risk of being sued is too high.  Lastly, since malpractice insurance covers the damages up to a certain amount in a lawsuit, physicians do not feel as much of a financial burden as a result of their negligence, and the tort system does not achieve its goal of reducing medical error.  Also, it discourages open discussion about medical errors because physician’s fear it will bring legal consequences (MacCourt et. al, 2009). 

There are many different strategies that state legislatures have developed to address the problems with the medical malpractice tort system.  These include narrowing the statues of limitations, limiting attorney fees, pretrial screening panels, arbitration, reform of joint and several liability rules, collateral source rules as well as limiting damages awarded to plaintiffs and requiring periodic payment schedules (Tan, 2009).  Some lawmakers look down on the use of a civil jury for malpractice claims because jury trials are usually much more costly and their worth in deciding the case is debatable (Solomon, 2012).  Most states have adopted at least some of these measures, but there is no single solution that is accepted by all.

Limiting the noneconomic damages a plaintiff can recover is the most popular approach that state legislatures have enacting in efforts to fix the tort system (Harris, 2009).  Over half of the United States legislatures have placed limits on malpractice damages (Harris, 2009). This approach is accepted by most medical practitioners, hospitals, and defense lawyers because it prevents rising costs from expensive malpractice lawsuits (Harris, 2009).  However, many patient advocates and trial lawyers believe that these types of reform are disadvantageous to the injured party who deserves and needs compensation most, and rewards the party who is responsible for the injury (Harris, 2009). 

Narrowing the statutes of limitations is another method used by some states as a tort reform.  It is intended to minimize litigation by limiting the amount of time a patient can file a claim against a physician (Tan, 2009).  It protects the physician from not being worried about being sued for mistakes that occurred a long time ago, but still gives the patient a reasonable time to file a claim (Tan, 2009).  There is also a discovery rule that states that the amount of time a patient has to file a claim begins after discovery of the injury, not when the actual injury occurred (Tan, 2009).  However, opponents of this type of reform believe that it does not fully address the issue because the statutes of limitations do not start for minors until they reach they reach the age of eighteen.  This is to ensure they can file a claim themselves when they are of age and do not have to rely on others to do so (Tan, 2009).  However, the physician may not be able to recall the details of a young minor patient he treated if the claim is brought up many years after it occurred when the patient becomes an adult.  This also presents possible bias to pediatricians and obstetricians who routinely treat patients who have longer statues of limitations (Tan, 2009). 

Limiting lawyer fees has been looked at as a method of tort reform because some people believe the way lawyers are paid encourages medical litigation (Tan 2009).  In most medical malpractice cases, attorneys are paid a contingency fee, which is a predetermined percentage of the total award to the plaintiff (Pozgar, 2012).  They are only paid if they win the case.  Therefore, some people believe this causes lawyers to seek out claims that have merit and prevents poor claims from taking up time and money at trial (Tan. 2009).  Opponents of this type of payment believe that it causes a lawyer to try to get a settlement out of every case, even if it is less than what the plaintiff requests (Tan, 2009).  One solution to this is to install a sliding scale for contingency fee payments.  With a sliding scale, the percentage of money due to the attorney would decrease as the award to the plaintiff increases (Pozgar, 2012).  Also, the fee could be reduced if the claim was settled prior to trial, thus discouraging all claims from going to trial (Pozgar, 2012).

Pre-trial screening panels, mediation, and arbitration are all methods designed to minimize and control the number of claims that go to trial.  Arbitration is a method of attempting to resolve a dispute before it goes to trial by evaluation from an impartial mediation panel (Pozgar, 2012). It can be done privately or court-annexed, and can be binding or non-binding (Tan, 2009).  It helps decrease costs by shortening the time it takes to resolve disputes (Tan, 2009).  However, it does not seem to accomplish the goal of tort law-to prevent practitioners from providing sub-standard care (Tan, 2009).  Mediation also attempts to settle the dispute before it goes to trial by having a third party help reach a settlement (Pozgar, 2012).  It is beneficial because it allows both parties to come out of the dispute in agreement, but it may cause the defendant to feel like they weren’t at fault for an injury when they were truly negligent (Tan, 2009).  

Unlike arbitration and mediation, pretrial screening panels occur before a trial to help determine the merit of a claim, but do not completely replace the trial (Pozgar, 2012).  The opponents of pretrial screening panels believe that they increase costs because the time it takes for the pretrial screening delays the litigation.  They also believe that it is more expensive because experts must be paid twice to be on the screening panel as well as testify at the trial (Tan, 2009).  Proponents of pretrial screening panels believe that they offer patients the opportunity to obtain answers regarding their medical injury claims without going to trial, as well as preventing frivolous claims from advancing to trial (Tan, 2009).

The joint and several liability doctrine allows a plaintiff to receive the entire amount awarded from each defendant if there are multiple people at fault (Pozgar, 2012).  This increases costs of malpractice premiums because the plaintiff can be awards a much larger sum if multiple defendants have to pay that amount.  Reform of this doctrine would establish that each defendant is only required to pay a percentage of the total award depending on the amount of fault attributed to him or her (Pozgar, 2012).  Although this practice would reduce the cost of malpractice claims to the defendants, it may not fairly compensate plaintiffs for their injuries if the defendant is unable to pay the amount awarded to the claimant (Tan, 2009).

Reforming the collateral source rule is another method some states use as a means of medical liability reform.  The collateral source rule can cause plaintiffs to receive much more than their actual monetary loss because it forbids the court from taking into account damages paid by other sources such as insurance or government compensation such as social security (Pozgar, 2012). 

A periodic payment plan requires that the money awarded to the plaintiff to be invested and distributed throughout the plaintiff’s lifetime, instead of in a lump sum payment (Pozgar, 2012).  That way, a smaller amount can be paid by the defendant but the plaintiff will still receive enough to cover their losses throughout their lifetime.  This prevents excessive payments being awarded to the plaintiff, which increases the cost of malpractice premiums.  However, opponents of periodic payment schedules argue that they do not account for the rising costs of health care and may cause unnecessary financial hardship to the injured party (Tan, 2009).

The use of civil juries in medical malpractice claims is also debatable.  Jury trials are much more expensive than other trials and do not necessarily provide any benefit (Solomon, 2012).  Juries are designed to provide insight on issues of fact, but in malpractice cases they tend to be required to take into account determination of the law, which is supposed to be the judge’s duty (Solomon, 2012).

The American Tort Reform Association (ATRA) recommends a reform package that includes four elements to decrease the cost of medical malpractice litigation.  It includes limiting the noneconomic damages a plaintiff can be awarded to $250,000, instituting a sliding scale for contingency fees, enacting periodic payment for damages, and doing away with the collateral source rule (ATRA, 2011).  Colorado does have a $300,000 limit on noneconomic damages in medical malpractice cases (HB 03-1007, 2003).  I believe that the package suggested by the ATRA is reasonable and constitutional.  Like most problems with the health care system, there is no single solution to fixing the tort system.  Employing multiple methods of tort reform is the only way to gain control of the problem. 

            Controlling the costs of medical liability is imperative to stabilize costs of health care system.  State legislatures have realized the need to reform the tort system to control these costs as well as remain fair for plaintiffs and defendants.  Physicians must be held accountable for the negligence, but they must also be free to practice medicine without the constant fear of facing frivolous litigation.  Multiple approaches to tort reform are necessary to deter medical malpractice as well as prevent the court system from being overrun with un-merited claims.