Articles Posted in Tort Reform

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As we wait for tomorrow’s vote on the confirmation of Tom Price for Secretary of Health & Human Services, one cannot help but notice many erroneous ‘facts’ and figures being touted in the media by medical malpractice naysayers. One such untruth is that healthcare costs have significantly increased in recent years due to an influx in medical malpractice lawsuits. Despite evidence to the contrary, this myth persists and there seems to be no end in sight.

You Can’t Argue the Facts

Nationwide, state-filed medical malpractice lawsuits fell 23% between 2001 and 2010. In Illinois alone, medical malpractice suits have fallen 39% since 2003. Across the United States, civil lawsuits, under which medical malpractice is classified, are mostly comprised of contract disputes. In fact, 64% of all civil lawsuits are related to contracts, while malpractice cases account for only .2% of all civil lawsuits. This information was obtained through the Illinois Courts’ own website.

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Rick Santorum, the former Pennsylvania Republican senator who is best known for his unsuccessful 2012 and 2016 presidential campaigns, is guilty of saying one thing and doing another.  In 1999, Santorum’s wife, Karen, sued her chiropractor for $500,000 after his treatment of her sore back caused further injury that required surgery. Former Senator Santorum testified in the case that his wife’s quality of life had been diminished, with the injury having harmed her active lifestyle and her ability to keep up with household tasks. Mrs. Santorum was awarded $350,000 (she ultimately received $175,000).

Hypocrisy

Just 5 years prior to his wife’s lawsuit, Santorum fought to implement legislation that would place a $250,000 cap on damages for pain and suffering, the very injustices that he testified his wife had to face after receiving poor care. Not surprisingly, when pushed by the media on the issue during his 2012 presidential bid, Santorum said that his wife did not sue for pain and suffering.  Instead, he argued that his wife fought to be compensated for lost income and costs stemming from the injury (medical costs associated with her injury and surgery were shown to total less than $20,000). The judge who initially presided over the trial later reduced her award to $175,000, citing Mrs. Santorum’s own words that the operation gave her “immediate relief” and that she required no further treatment after the surgery.

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An article posted yesterday on Huffington Post examines how Republicans’ plan to repeal and replace parts of the Affordable Care Act (ACA) will force Americans to be treated as a diagnosis and not an individual with personal or legal rights. This past May, Tom Price, now Trump’s pick for Secretary of Health and Human Services, released the ‘Empowering Patients First Act,’ his alternative to healthcare reform known as the Affordable Care Act.

Price’s plan, known as the Empowering Patients First Act, would require doctors to administer medical treatment for symptoms based on a set of guidelines established by the Secretary of Health & Human Services in conjunction with a currently unidentified  ‘qualified physician census organization.’ According to Price, these clinical guidelines would be updated every two years and would be made available to the public. Should the Empowering Patients First Act pass, Americans would no longer be treated as an individual, but rather as a set of symptoms resulting in a one size fits all diagnosis.

Why Americans Should Worry

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In November, Americans for Insurance Reform (AIR), a coalition of nearly 100 consumer interest groups, released the results of two studies they conducted based on new insurance data. The studies reveal that contrary to Speaker Paul Ryan’s claims, states that allow caps on damages and other tort reform measures actually have higher doctor’s rates. These same studies also show that premiums and claims for doctors are at their lowest levels in 40 years.

Tort reform supporters frequently claim that medical malpractice insurance rate hikes are directly linked to increases in malpractice payouts. AIR found that rising rates were tied to the economy and the financial losses of the insurance industry, relating to their investments in the stock and bond markets. In years where the stock market was strong, insurance companies lowered premiums in an effort to attract customers and quickly invest the profit made from their premiums.

Based on these findings, AIR concludes that insurance companies are allowing tort reform supporters to believe that taking away the right to fair compensation for those injured by negligence will reduce insurance rates. According to AIR, ‘Lawmakers should focus instead on controlling the power and the abuses of the insurance industry.’

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States around the country are making terrible mistakes by enacting draconian tort reform measures that strip injured patients of their rights to recover from doctors and other medical professionals who hurt them. The only way there is to hold these healthcare providers responsible for their negligence is by filing medical malpractice claims. In spite of the importance of medical malpractice litigation, some state legislatures like those in Missouri, Texas, and Wisconsin have taken steps to severely curtail these lawsuits. Fortunately, it appears that Illinois will not be falling for the tort reform any time soon.

Illinois Committee of the Whole Holds Tort Reform Hearing

Last month the Illinois Committee of the Whole held an hours long hearing on tort reform reports the Illinois News Network. There currently are not any official proposals on the table for tort reform in Illinois, but it is always a possibility and the insurance lobby never stops pushing for measures like damage caps. Fortunately at this hearing victims of medical malpractice had an opportunity to speak out and remind legislators why damage caps are so harmful. In addition to these medical malpractice victims, victims of other types of torts also came forward and testified about why general personal injury or wrongful death damage caps would be harmful. The widows of two dead state troopers were among those who testified.
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State after state falls into the trap of pursuing wrong-minded so-called tort reform laws. These laws are marketed to the public as a necessity to prevent frivolous lawsuits. However, all these sorts of laws do in reality is deny those most injured by medical malpractice the ability to recover fully for injuries caused by the negligence of healthcare providers while often violating various constitutional provisions. Misguided and dangerous medical malpractice legislation is currently pending in the Georgia legislature.

Dangerous Tort Reform Measure Pending in Georgia

The Atlanta Journal Constitution reports that Georgia’s legislature is considering medical malpractice legislation. The bill is Senate Bill 86. This new law would go even further than other states’ prior tort reform measures, stripping patients seriously injured by their doctors of any right to a trial by jury at all. Instead every single medical malpractice claim in the state would be handled by a sort of administrative tribunal.

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While courts in states as varies as Illinois, Missouri, and Florida continue to hold tort reform measures designed to rob injured plaintiffs of their rights to recover for their personal injuries unconstitutional, legislators continue to push these measures in states that have not yet enacted them. Colorado is the next state to face the possibility of draconian tort reform measures this legislative term. Caps on medical malpractice damages are just one type of law that the insurance lobby is pushing for this year. West Virginians are also in danger.

Colorado Legislators Push for Tort Reform

Denver’s News 9 reports that the Colorado legislature has already introduced 111 bills this session. Tort reform efforts are among those bills and apparently the effort is at least partially bipartisan. The Denver Business Journal reports that the efforts are large scale.
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The Baltimore Business Journal reports that Maryland lawmakers are considering creating a birth injury fund. While on its face this may seem like a wonderful and well-intentioned idea, it would ultimately hurt those families who are most severely harmed in birth injury cases.

Regular System With No Birth Injury Fund

In a regular system, like that in Chicago, parents file birth injury lawsuits w hen babies are injured during birth or before birth by the careless or intentional acts of a doctor, nurse, hospital, or other healthcare provider. When the actions are not criminal but are serious enough to hurt the baby, they are a “tort,” which means a civil wrong that can be sued over. When a meritorious law suit is filed, either both sides will come to an agreement as to what damages should be paid to the injured family, or there will be at a trial. Both sides will be represented by experienced medical malpractice attorneys who can advise them as to what risks they should and should not take. At the trial, if the jury determines that the hospital or healthcare provider is “liable,” or responsible, for the injuries, then the jury will determine how much the family should be compensated based on the individualized facts of the case.

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The Florida Supreme Court struck down that state’s cap on wrongful death non-economic damages because the cap violated the equal protection clause of Florida’s constitution. Justice Lewis wrote for the Court that the $1 million cap was unconstitutional because “it imposes unfair and illogical burdens on injured parties when an act of medical negligence” effects more than one person. He explained that the cap resulted in some injured people receiving full compensation while arbitrarily denying others compensation, meaning people were not treated equally before the law.

Caps on non-economic damages prevent those harmed by medical malpractice from being compensated for their injuries. Non-economic damages are meant to compensate the victims for the intangible harms they suffer. In a personal injury case, non-economic damages can include those for pain and suffering and emotional distress, while in wrongful death cases they can compensate the harmed parties for loss of consortium or loss of companionship. Awarding these damages allows a jury to acknowledge that the loss of a child or spouse is not merely harmful to the survivor because of the medical bills or loss of income, but that the loss of the actual person and the relationship is also a real harm.

Florida joins Illinois in a growing number of states that are undoing the damage done throughout the 1990s and early part of this century to civil litigants’ rights to recover for these injuries. Like Florida, Illinois used to cap non-economic damages in medical malpractice suits. Then, in 2010, the Illinois Supreme Court brought an end to the caps in the landmark decision of Lebron v. Gottlieb Memorial Hospital.

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It is no secret that litigating a medical malpractice claim can be stressful and difficult. The system is complicated, and resolving a case is not always quick. Our system of resolving medical malpractice claims is fraught with unnecessary impediments and flaws, such as frivolous lawsuits, lengthy settlement processes, and legal technicalities.

One such problem is that of doctor uncertainty. Accidents are called accidents because they are unexpected and unintended, and they can happen even in the care of well-intentioned, experienced doctors who have acted as they should. Still, they may be hit with lawsuits that gum up the courts, thus slowing the process for meritorious claims. To attack this problem, some experts propose what are called “safe harbor” laws. These are laws that protect doctors from malpractice suits in cases where they have followed accepted clinical guidelines. Essentially, doctors are provided with checklists that, if followed, will prevent their liability for malpractice claims. However, where they are not followed, the doctors will open themselves up to liability.

Despite being intended to protect doctors, a new study has found that safe harbor laws are likely more beneficial to patients than doctors. The researchers examined malpractice cases from Oregon between 2002 and 2009 to see whether they would have come out differently had Oregon had safe harbor rules in place during the period. The study found that safe harbor rules would have changed the outcome of the case in favor of the defendant physician in only 1 percent of the 266 claims it examined, so it seems that safe harbor laws do not help doctors very much.