A tort is defined as a civil wrong committed against an individual, his or her property, or violation of personal rights (Scarrow, 2008, pp. 121). There has been a raging debate in the United States over tort reforms. Individuals from the political divide, legal practitioners, and physicians have also been embroiled in the unending debate regarding whether the malpractice reform lawsuit also known as Tort reforms will reduce federal spending on healthcare.
Tort reforms have been necessitated by the emergence of a trend where medical doctors practice what is known as ‘defensive medicine. Through this practice, the physicians order unnecessary medical tests to their patients so that they can cushion themselves against lawsuits as a result of malpractices committed. It is argued that defensive medicine is responsible for driving up healthcare costs which average US$ 2.3 trillion annually. It is therefore important to examine arguments for and against the tort reforms.
According to Congressional Budget Office (CBO), reforming the medical malpractice insurance system or the tort reform can significantly cut government spending on healthcare. In 2009, CBO projected that healthcare providers would incur a cost of approximately $35 million. The proposed lowering of medical liability insurance premium by a modest 10% so that healthcare expenditure can be reduced by 0.2% (CBO, 2009, para. 4).
With tort reform, there is a possibility of reducing utilization of the health care system to escape future lawsuits arising from injuries (CBO, 2009, para. 5). With the present healthcare system, victims of medical malpractice can sue the hospital and the physician for injuries inflicted in the course of treatment. Thus they would obtain hefty legal settlements and leave the doctors in financial turmoil.
It is critical to note that not all victims of professional negligence file lawsuits against the doctors in the court of law. Only 2% of the victims seek legal redress for the losses (Scarrow, 2008, pp.151).CBO further supports tort reforms by adding that some states have already enacted the tort reforms and have borne the fruits. By implementing it in several states, the United States government has been able to save a fraction of the cost of its health care.
A study conducted by the Massachusetts Medical Society concluded that defensive medicine is still being practiced by many doctors and it is responsible for inflating the cost of healthcare in the United States. Not only does it cost the federal government at least 1.4 million dollars but also cuts access to care for patients (Massachusetts Medical Association, 2008, para. 4). According to Manish K. Sethi of the Department of Orthopedic Surgery of Massachusetts General Hospital, the study revealed that fear of medical liability is forcing doctors to practice defensive medicine, making healthcare expensive. There are several ways of practicing defensive medicine. Unnecessary admission of the patient, prescription, referrals, unnecessary laboratory tests, and avoiding high-risk patients are some of the common practices. Thirty-eight percent of doctors in the study confirmed reducing the number of the high-risk procedure they carried out (Massachusetts Medical Association, 2008, para. 4).
Professional liability insurers
Insurance companies cover medical practitioners against any civil claim arising from malpractice (Aaron, 1991, pp.12). Medicaid, Medicare, and Children Health Insurance programs spend quite a fortune in supporting health care. Tort reforms will have an impact on these healthcare insurance providers. As a result, some of these firms will consider limiting the treatment considered to be of great help to patients. This will have the effect of reducing the amount of premium payable thus making the healthcare plan to be relatively cheap.
The increment in insurance premiums applicable to doctors has compelled several states to enact limits on non-economic damages.
It is believed that hefty awarding of payments by the jury is responsible for high prices and it prompted legislators to impose restrictions on such awards. Texas State is one of the states that passed the law limiting medical malpractice awards. This had the effect of encouraging the physicians from other states to seek medical practicing licenses to practice in the state. According to New York Times, 980 medical licenses were issued to the doctors by Texas Medical Board. This also had the effect of increasing the overall number of physicians in the state.
Trial lawyer’s perspective
It is crucial to note that the lawyers are the ones benefiting from jury awards. The clients, often victims of doctor’s professional negligence, receive huge payoffs and settlements some being legitimate and others illegitimate (Scarrow, 2008, pp.121). If tort reforms are successfully implemented by the states, the lawyers will be on the losing end since they will miss out on obscene award settlements granted to their clients.
Tort reforms have had many shortcomings. There are reports that medical malpractice restrictions have obstructed patients.
They are not able to argue out their case because the trial lawyers could not accept to take a case if the victim will not get a big settlement. Lawyers could take cases that will eventually lead to enormous settlements thus enabling them to earn much. Considering the current restrictions on cases dealing with medical liability, there is the possibility of poor people suffering for not having talented lawyers to handle their cases.
Another shortcoming is that the healthcare reform reduces premiums payable to insurance companies by the insured. However, they do not solve the problem of ever-increasing insurance premiums. Reports indicate that in some states where the malpractice restrictions have not been enacted, the insurance premiums were slightly more than in states with the restrictions. This has led people to seriously question the relevance of this piece of the legislature being considered as a tool for reducing the insurance premiums payable.
In the United States, the bill is facing an uphill task of convincing the Republicans to back it up. In some states, it is faced with an outright rejection.
Dissatisfaction with the tort reforms has been registered by other countries apart from the United States. Such countries have found an alternative to this legislation. A person who claims to have suffered injuries during treatment will successfully claim compensation and hence be precluded from taking the tort case to the court of law. Sweden and the rest of Scandinavian countries do compensate the victims as part of healthcare benefits.
The Americans are now apparently aware that the country’s healthcare plan is for the good and leaves a lot to be desired. Rectifying and making the malpractice bill acceptable to all citizens is an uphill task. However, it is worth trying. The bill is responsible for making the medical profession unattractive to be pursued as a career. For a genuine malpractice claim, reasonable compensation should be awarded by the jury to cater to the financial cost incurred and the psychological torture experienced. Otherwise, it would be a mockery of law to award huge sums of money to illegitimate claimants involved in a negligence suit.
Aaron, H. (1991). Serious and unstable conditions: Financing America’s health care. Washington DC: The Brookings institution.
Congressional Budget Office (2010). A letter to Senator Orrin G. Hatch. Web.
Massachusetts Medical Association. (2008). MMS First-of-its-kind Survey of Physicians Shows Extent and Cost of the Practice of Defensive Medicine and its Multiple Effects of Health Care on the State. Web.
Scarrow, A. (2008). Tort reforms: Alternative models. Clinical Neurosurgery. Vol. 55, issue 3, pp. 120-158.