Will Tort Reform Actually Solve America’s Healthcare Crisis?

This week, the Trump administration released their budget, estimating a savings of $31.8 billion over 10 years by capping non-economic damages in medical malpractice lawsuits. This practice, known as tort reform, has been a highly argued issue for decades. With over 30 states having already enacted some type of tort reform, the facts show that the number of medical malpractice lawsuits have declined, but that the average payout has actually increased. What could explain this?

Tort Reform Will Further Harm Economically Disadvantaged
While tort reformers would like to argue that fewer malpractice lawsuits are due to legislation restricting damages, the truth is that the system is set up in these states to discourage attorneys from taking lawsuits and to discourage those with claims from coming forward. The result is attorneys who have become extremely selective of the cases they will take on, choosing to only take those that seem to be a ‘sure thing.’ Before assuming the worst, consider the financial nature of the profession. Most medical malpractice and personal injury attorneys are only paid by the client if they recover money. All of the hours of research, being available to consult with the victim and/or their loved ones, finding, hiring, and interviewing expert witnesses, conducting depositions and court appearances are not covered by the client. Law firms are fronting the capital to carry these cases and with non-economic damages limited in many states, they’ve had to turn down cases that while legitimate, might not fare so well in court. Setting up the system so that money is only exchanged if the attorney successfully handles a case is done to serve families of all economic means, particularly those that have been weighed down by astronomical medical bills, loss of income, and other factors that have affected their ability to seek justice through an experienced medical malpractice attorney.

True Hypocrisy
For every person in favor of tort reform at the federal level, it seems you’ll find two who are against it. Those who are in favor of federal tort reform believe that it will reduce frivolous lawsuits, encourage doctors to leave behind the practice of unnecessary testing (often referred to as defensive medicine), and will help solve the issue of how to handle lawsuits that arise from telemedicine (which crosses state lines and will cause conflicts over the state in which to pursue legal action).  They claim that the end result of tort reform will be a savings of $31.8 billion over the next 10 years. However, just last month we reviewed an op-ed piece written by a respected neurosurgeon who argues against tort reform and says that attempting to remove defensive medicine from our society is nearly impossible. His exact words were that defensive medicine was ‘baked into the cake,’ now being taught in medical schools, residency programs, and teaching hospitals across the country. Doctors are trained problem solvers. If they are searching for the root cause, they are taught to use all means necessary to find it, which includes tests, procedures and medications.

The hypocrisy is that those who are in favor of federal tort reform are, more often that not, conservatives. The Trump administration in particular has been quite vocal about staying out of laws that should be left up to the states. By allowing the federal government to step in on legislation that has always been left to the states, tort reformers are essentially cherry-picking what they trust the states to handle independently and what they don’t. While a state could still challenge a federal tort law, it contradicts everything conservatives believe about the constitution being the supreme law of the land. The 7th amendment gives us the right to a trial by jury. The 10th amendment gives all power to the states that is not specifically given to the federal government in our constitution. So what do conservative federalists now believe? Is the constitution mostly the supreme law of the land, with the exception of the 7th and 10th amendments?

Furthermore, how can conservatives argue against the federal government instituting federally-mandated health insurance (Obamacare), but then champion a law that will strip rights away from those who have been injured by our health system? Everything about the push for tort reform feels wrong. The idea that it will save $31.8 billion is false and based on nothing but propaganda that doctors, patients, attorneys, and Americans can see right through.

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