Defensive Medicine: Is Tort Law in Need of Reform? – Part II

Last week, we discussed defensive medicine and the fact that some politicians are using it as grounds for tort reform. But as you may remember from the post, few studies have been able to support the claims that changing existing medical malpractice laws will significantly cut health care spending in the United States.

It’s because of this that we ended our blog post with an important question that we hope to answer in this week’s blog post. The question was this: if defensive medicine isn’t the real culprit then why are so many politicians pushing for tort reform? In order to answer this question, we need to look into what tort reform is.

Traditional tort reform actively seeks to change existing tort laws, which typically results in one of two ways. On one hand, a reform can put more emphasis on patient safety, forcing doctors and hospitals to be more mindful of what they are doing or risk litigation. This often drives up health care costs though for patients as hospitals try to offset the cost of more expensive malpractice insurance.

On the other hand though, reforms can change the terms of filing a medical malpractice lawsuit or even make the process more difficult than it already is. It can also put restrictive caps on damage amounts received in court decisions. These caps restrict how much a victim receives in punitive and/or noneconomic damages, often leaving them with a sense of injustice in the end.

Finding that balance between holding negligent doctors and hospitals responsible for their actions and discouraging frivolous lawsuits is tricky, especially when some changes appear to come from political motives rather than the betterment of the law.

Current politicians will need to carefully consider whether their argument for change will benefit or harm victims of medical malpractice; because if politicians rely on current arguments to push for tort reform, many victims may have difficulty finding redress for their injuries in future litigation.

Sources: Medscape, “Defensive Medicine Less Costly Than Suspected,” Marcia Frellick, Sept 18, 2014

The Los Angeles Times, “New study shows that the savings from ‘tort reform’ are mythical,” Michael Hiltzik, Sept. 20, 2014