Quick Guide to Tort Reform
Adapted from
The EMRA Emergency Medicine
Advocacy Handbook
Overview
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Definition
The Malpractice Crisis
Solutions
Controversy
Current Legislation
Definitions
• Tort
– Any civil wrong in which the victim can seek
legal redress from the person who caused
them harm
• Tort Reform
– Legislative proposals to regulate legal claims
– Usually matter of state common law
– Mentioned in federal legislation
History of the Malpractice Crisis
• Increasing rates/premiums leading to
changes in physician practices
– Doctors in low risk, high compensation areas
• More specialists, less primary care
– Poor reflection of public needs and burden of
disease
Malpractice History
• 1970s Crisis of Availability
– Insurers left volatile markets
– Physicians unable to find coverage
– Liability reform leads to prototypical tort
reform
• MIRCA (1975) Medical Injury Compensation
Reform Act
Malpractice History
• 1980s Crisis of Affordability
– Surge in premiums
– Physicians cut back on high-risk practices
– Practices closing entirely
– Use of local joint underwriting associations
with prohibitively high rates
– ‘Going bare’ without malpractice insurance
Malpractice History
• Millennium Crisis of Access to Care
– Litigation forces physicians to shift practices
in areas without medical liability reform
• Liability insurance survey by AHA (2003)
– 45% of hospitals reported loss of physicians/
coverage
– Gaps in access to care widen
– Students steered away from high-risk
specialties
Malpractice Crisis
• Frivolous lawsuits clogging the system?
– 74% no payment
– 37% no medical error
– 3% no injury
• Torts reduce rates of patient injury?
– Evidence supports shift to Defensive Medicine
Malpractice Crisis
• Who pays?
– Physicians
• Higher malpractice premiums, closing of practices
– Patients
• Increased premiums and costs of care, decreased
access to care
The Solution
• Advocating for change requires
understanding the issues:
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Caps on Economic and Non-Economic Damages
Joint and Several Liability Reform
Comparative Negligence Reform
Collateral Source Rule Reform
Limitation on Attorney’s Fees
Prejudgment Interest Reform
Qualification for Expert Witnesses
Statutes of Limitation/ Repose Reform
Structured Payments for Damage Awards
Granted
Caps on Economic /
Non-Economic Damages
• Economic Damages
– Loss of quantifiable income
• Personal income, medical costs, future care costs
• Non-Economic/Punitive Damages
– Unquantifiable losses, companionship,
consortium, vision
• 32 states with caps on punitive damages, 23
states with caps on non-economic damages
(2008)
• ‘Hard’ and ‘Soft’ caps
Joint and Several Liability Reform
• Enacted in 40 states
• Each co-defendant held liable for proportional
harm to plaintiff
• Formerly, each co-defendant held 100% liable,
regardless of individual assessed liability
– Attempts to define which defendant is most
responsible for damages done
Comparative Negligence Reform
• If plaintiff partially responsible for his own
injury, award reduced by proportional
amount
– Similar to joint and several liability
• Exists in most jurisdictions under case law
• Statutory changes limit various actions
from being included
Collateral Source Rule Reform
• Allows evidence at trial to show if and how
much the plaintiff’s losses have already
been compensated from other sources
(insurance, worker’s compensation)
• Eliminates plaintiff’s ‘double-dip’
Limitation on Attorney’s Fees
• Attorneys collect between 1/3 to 1/2 of
judgment/settlement after expenses
• Reform to ensure:
– Plaintiff receives majority of compensation
– Discourage differential motivation from clients
Prejudgment Interest Reform
• Plaintiffs may collect back interest on any
judgment for the duration of the lawsuit
• Intended to encourage quick settlements,
often results in over-compensation when
delays in judgment occur
Qualification for Expert Witnesses
• Traditional evidentiary standards define
expert as witness with education, training,
or experience to testify about issues in a
case
• Reforms often include:
– Clinical duty requirements
– Similar practice backgrounds
– Board certification
– Actual knowledge based on active practice
Statutes of Limitation
and Repose Reform
• Limitation
– Limits on time a case can be filed from the
date the negligence or medical malpractice
occurred (Discovery Rule)
• Repose
– Absolute limit on time to file regardless of
discovery rule
– Not present in most states
Structured Payment Systems
for Damage Awards Granted
• Upon judgment, entire sum is due in full
– Required in most states
• Reforms disperse payments over time to
lessen financial burden
The Controversy
• Proponents of current tort system place
blame for premiums on insurers
– Accidents deterred by combining
compensation for victims with physician
responsibility
– Capping malpractice payments does not
ensure fair compensation or prevent unsafe
practices
The Controversy
• Opponents contend standard tort reforms
do little to change a dysfunctional system
– Sweeping reform needed to prevent cyclical
malpractice crises
• Malpractice payments do little to prevent
unsafe practices or ensure fair
compensation
The Current Legislation
• Many states with tort reform
• Federal legislation has been considered
for several years
• Current information at AMA, ACEP
websites
– Each state chapter has state advocacy
information
Get Involved!
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Key to reform is advocacy (Chap. 15)
Write letters (Chap. 16)
Share information (Chap. 19, 20 )
Participate in physician organizations
(Chap. 19, 20)
• Advocate for reform!
References
• Schlicher, N.R. Emergency Medicine Advocacy
Handbook. Chap.13,63-67.