Forbes Magazine is a bastion of right-wing, pro-business thinking. I was therefore very happily surprised to recently find on their website an article acknowledging that the whole notion of “tort reform” is nothing more than big businesses “hoodwinking” legislatures into giving changing the rules in their favor, to fix a supposedly that never really even existed. That’s right: “hoodwinked” – their term, not mine.
As of March 9, 2015, the article can be read in its entirety here. It’s entitled “On Tort Reform, It’s Time to Declare Victory and Withdraw” and is written by an author who’s been covering medical malpractice lawsuits for 25 years. The introduction to the article sums it up nicely. Here are the first few paragraphs:
“The greatest trick the Devil ever pulled was convincing the world he didn’t exist.”
Verbal (Kevin Spacey) in The Usual Suspects
“The second greatest trick may be the insurance industry’s success in getting more than half the states to implement “tort reform.” That achievement was based on the promise that restricting victims’ ability to bring medical malpractice suits would improve healthcare and reduce its cost. Those myths have now been completely dispelled.
“The last bubble to burst was that because doctors are fearful of getting sued, they practice “defensive medicine,” prescribing unnecessary and costly tests and procedures. That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.
“This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”
“None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent.”
The article goes on to state that one of the unintended consequences of the whole tort reform notion is that it has slowed down progress in patient safety initiatives, which are largely driven by doctors’ healthy fear of jury verdicts:
“Sadly, the tort reformer’s success has had one unintended consequence that hurts everyone: they have slowed down progress in patient safety initiatives. It is well documented that major reforms in anesthesiology in the 1980’s were the direct result of anesthesiologists’ frustration with many large malpractice verdicts against the specialty – and the attendant negative publicity. In response, anesthesiologists revamped their procedures, established mandatory monitoring, improved training, limited the number of hours anesthesiologists could work without rest, redesigned machines and outfitted others with safety devices. Within 10 years, the mortality rate from anesthesia dropped from 1 in 6000 administrations to 1 in 200,000. And anesthesiologists’ malpractice insurance rates fell to among the lowest of any specialty. Since the success of the tort reformers, other specialties have felt less pressure to undertake similar self-reflective reforms.”
The article then concludes:
“It is time for legislators to recognize that they were hoodwinked, dismantle the so-called reforms, and begin to look for real solutions to make patients safer.”
I completely agree. The most efficient way to make everyone in our society safer ( patients, pedestrians, vehicle drivers, airline passengers, etc.) is to hold fully accountable every person who causes injury. Shielding doctors from the consequences of their actions doesn’t promote safety – it encourages carelessness. The most efficient way to protect our citizens is to cancel all so-called “tort reform” laws.