Medical Malpractice And Tort Reform

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Under already existing law in every US jurisdiction, if a defendant or the judge believes that a plaintiff has misrepresented the facts or the law or has brought a "frivolous" pleading, the defendant, or the court on its own initiative, may ask for the action to be thrown out and for the attorney bringing the action to be penalized with a variety of sanctions. For example, Rule 11 of the Federal Rules of Civil Procedure provide in part: "By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:. Ethical rules also forbid attorneys from filing "frivolous" lawsuits.

A simple review of these published opinions demonstrates that courts take violations of their pleading and ethical rules seriously. Tort reform in Texas has imposed a requirement in medical malpractice cases that only a physician practicing or teaching in the same specialty as the defendant can serve as an expert witness in the matter. Additionally, a report from that witness showing evidence of negligence must be filed with the court within days of the filing of the case. Failure to do so results in liability for the defendant's legal fees. Filing an action but failing to find a suitable expert or failure to file adequate reports within the time frame provided can result in hardship for a plaintiff who may already be crippled by physical injuries and bankrupted by medical fees.

Advocates of tort reform also complain of regulation through litigation , the idea that litigation is being used to achieve regulatory ends that advocates would not be able to achieve through the democratic process. For example, Rep. Tort reform advocates argue that by limiting the threat of frivolous lawsuits, the medical industry would migrate away from practicing defensive medicine. This would reduce the number of unnecessary tests and procedures, typically performed under patient request, thereby reducing the costs of medical care in general. As an argument against the current system, tort reformers link the rising costs of premiums for physicians' medical malpractice insurance [63] to the rising cost of personal and group policy health insurance coverage.

California's Medical Injury Compensation Reform Act has been cited as a model for tort reform in health care. Others deny that medical malpractice suits play a significant role in the cost of health care. Including legal fees, insurance costs, and payouts, the cost of all US malpractice suits comes to less than one-half of 1 percent of health-care spending. According to Baicker and Chandra , increases in premiums are not affected by past or present malpractice payments, but may increase due to other unrelated factors. Chandra, Nundy, and Seabury find that the rising cost of medical services may explain the bulk of the growth of "compensatory awards". They also find that the greatest ten percent of the malpractice payments have grown at a smaller pace than the average payment for the years and This means that the "medical malpractice crisis" is not necessarily fueled by the growth in malpractice payments.

Furthermore, malpractice pressure actually forces our hospitals to be technically more efficient. This implies that existence of the medical malpractice system is beneficial, and its strength should not be diluted by either putting caps on non-economic damages or by decreasing the statute of limitations. There has been a noticeable drop in medical malpractice insurance premiums for physicians in states that have enacted Tort Reform. States that have not enacted Tort Reform legislation tend to have a higher cost of professional medical liability insurance than states that do. Opponents of tort reform legislation often reference the story of Frank Cornelius, whose New York Times op-ed piece, "Crushed by My Own Reform," told of allegedly negligent procedures performed by his physicians.

In , Cornelius had fought for damage caps, but he later came to repent of his role in that campaign. Some say that federal licensing is a better approach and a strong central regulatory body is the answer to deal with negligent physicians who cross state lines. Some supporters of tort reform posit that reforms can significantly reduce the costs of doing business, thus benefiting consumers and the public in the long run. Porter stated: "product liability is so extreme and uncertain as to retard innovation.

The legal and regulatory climate places firms in constant jeopardy of costly and The existing approach goes beyond any reasonable need to protect consumers, as other nations have demonstrated through more pragmatic approaches. Critics of the tort reform movement dispute the claim that the current tort system has a significant impact on national or global economies. But that paper, too, failed to demonstrate any employment effects of the tort system and made no prediction about the impact of tort law change. Critics of tort reform also contend that the real purpose of the proposed changes is to shield businesses, especially large corporations, from having to pay just compensation to consumers, patients and clients for the harm incurred from fraud , negligence , medical malpractice , product liability or other legitimate tort claims.

In response to lawsuits filed against gun manufacturers by several municipalities, a bill was proposed by the US Congress in that would provide immunity to gun manufacturers for most negligence and product liability actions and prohibit the Bureau of Alcohol, Tobacco, Firearms, and Explosives from revoking a dealer's license, even in cases where a dealer has been identified as selling a relatively high number of guns subsequently used in violent crimes. Organizations such as the United States Conference of Mayors oppose gun manufacturer immunity legislation. Opponents of tort reform deny that there has been a "litigation explosion" or "liability crisis", and contend that the changes proposed by tort reform advocates are unjustified.

Records maintained by the National Center for State Courts show that population-adjusted tort filings declined from to Tort reform advocates allege that these numbers are misleading. They claim that most liability costs come from pre-trial settlements, so the number of trials is irrelevant. They also note that the choice of the start date is misleading, because the largest increase in the number of tort cases occurred between and They also argue that the use of the median, rather than the mean, is a misleading statistic for measuring the magnitude of the litigation problem.

Tort reform opponents argue that corporations and insurance companies are the worst abusers of the litigation system. Tort reform in Texas changed the definition of negligence in the context of emergency room treatment to include only "willful and wanton" acts. This has been interpreted as including only acts intended to harm the patient. Texas Monthly wrote, "Windows were shattered. Hail knocked holes in rooftops. Unfortunate animals were beaten to death. After the storms, thousands of lawsuits were filed against insurers and adjusters. The lawsuits were based on allegations of "low-ball payments on claims.

The bill represented "an almost visceral fight between the insurance industry, Texans for Lawsuit Reform and trial lawyers whose symbolic leader in storm-damage claims in Steve Mostyn of Houston. In February , a bill was introduced in the Texas state Senate that would aim "at ending hailstorm lawsuit abuse. Dan Patrick supported the bill Senate Bill 10 and said during his State of the State address , "Hailstorm litigation is the newest form of lawsuit abuse.

The bill would still allow hailstorm insurance claimants to sue their insurance company. It would allow plaintiffs to sue for either deceptive trade practices or unfair settlement, but not both. According to SE Texas Record , "The bill also seeks to end barratry in hail litigation, as reports of lawyers employing contractors and insurance adjusters to drum up clients have continued to surface the past several years. A number of proposals have been made by advocates of tort reform, although these proposals are not agreed on by all 'tort reformers' and are considered by many opponents a roll-back of the reforms of the twentieth century. Non-economic damages caps place limits on a jury's ability to award damages to victims for pain and suffering and loss of enjoyment of life as well as punitive damages.

The purpose of these reforms is to allow for fair compensation for victims while preventing excessive, emotionally driven jury awards from bankrupting entire organizations and leading to job losses and cost increases for consumers. Proposals to cap non-economic damages are one of the most frequently proposed tort reforms, and have generated controversy over their fairness, efficacy, and constitutionality. For example, tort reform critics point to the story surrounding the Ford Pinto, [85] where accountants determined that the expected payout in wrongful death suits would be less than making a design change to prevent the gas tanks from blowing up on minimum impact.

For tort reform critics, the prospect of unpredictably large damage awards would reduce the incentive that companies have to behave in this manner. Tort reformers have had the most legislative success in limiting the common law rule of joint and several liability , often replacing it with a rule of proportionate liability. Of the forty-six states that had a joint and several liability rule, thirty-three states have abolished or limited the rule. Nearly every Western democracy follows the "English rule," which requires the loser of a civil suit to compensate the winner for his or her attorney's fees. The "American rule" differs; in most cases, each party bears its own expense of litigation.

Supporters of tort reform argue that loser-pays rules are fairer, would compensate winners of lawsuits against the costs of litigation, would deter marginal lawsuits and tactical litigation, and would create proper incentives for litigation, and argue for reforms that would require compensation of winning defendants some or all the time. Opponents argue that such rules would have had a chilling effect on civil rights litigation. Proposals to limit frivolous lawsuits have been criticized on the grounds that the restrictions could be used to impede individuals attempting to enforce civil rights laws, according to The Federal Judicial Center's Study of Rule Robert L. Sheila Jackson Lee have both argued that Brown v.

Board of Education would have been called frivolous. Tort reform is controversial. George W. Bush made tort reform a centerpiece of his successful run for Texas governor and of his second-term domestic policy agenda. In the presidential election , Democratic vice presidential nominee John Edwards , a successful trial attorney, was criticized by tort reform advocates for lawsuits that he brought against obstetricians on behalf of children who suffered severe birth injuries; reformers criticized the suits as relying on " junk science ", while Edwards denied the allegation.

Republican lobbyist Grover Norquist points out possible political motivations for tort reform, writing in American Spectator that "Modest tort reform, much of which has been actively considered by committees in both houses, would defund the trial lawyers, now second only to the unions, and this is debatable, as the funding source of the Left in America. The United States Supreme Court sometimes weighs in on tort reform debates, but here too, the justices do not always vote according to their predicted ideological stereotypes.

In the seminal case of BMW v. Gore , [94] the court ruled that the Constitution placed limits on punitive damages, with liberal justices Stephen Breyer and John Paul Stevens in the majority and Justices Antonin Scalia and Ruth Bader Ginsburg dissenting. Under Chief Justice John Roberts , some expect the court to be more likely to take cases that could resolve tort reform debates. Australia and the United Kingdom drew up proposals for similar no-fault schemes, but they were never implemented.

From Wikipedia, the free encyclopedia. This article is written like a personal reflection, personal essay, or argumentative essay that states a Wikipedia editor's personal feelings or presents an original argument about a topic. Please help improve it by rewriting it in an encyclopedic style. June Learn how and when to remove this template message. Type of judicial reform. See also: Insurance , Medical malpractice , and Product liability. See also: Distributive justice and Equality of outcome. Main article: Non-economic damages caps. See also: Punitive damages and Jury. Main article: Joint and several liability. Main article: Accident Compensation Corporation. Retrieved Ward v Tesco Stores Ltd [] 1 All ER , where the res ipsa loquitur doctrine was applied where someone slipped on yogurt in a supermarket.

An employer may have failed to properly fence off some dangerous machinery, which exposes workers to risk of injury. See Donoghue v Stevenson [] AC , where a decomposed snail was found in a soft drink, see Lord Atkin's judgment in particular. Towse and P. Business Week. Atiyah The Damages Lottery , Ch. Accessed January 24, Los Angeles Times. See Joni Hersch and W. Legal Stud. Thorpe January 21, ". Health Affairs. It is led by Richard Cauchi Program Director. Create Account. Tort reform has the potential to reduce health care expenditures by reducing the number of malpractice claims, the average size of malpractice awards and tort liability system administrative costs.

It also may lead to fewer instances of defensive medicine where physicians order tests and procedures not primarily to ensure the health of the patient but as a safeguard against possible medical malpractice liability. Major medical malpractice reform targets include damage awards, legal and administrative expenses and defensive medicine. Some tort reforms have been shown to reduce medical malpractice premiums and may reduce overall health care expenditures. A study published in found that the 15 states with the lowest levels of malpractice payments and claims between and had low damage caps, restrictive statutes of limitation and stringent expert witness requirements.

Massachusetts doctors who make medical errors while treating patients are now required to disclose their mistakes and are allowed to apologize without facing lawsuits. Physicians and attorneys have both expressed support for the changes, saying they will help reduce unnecessary lawsuits and improve patient safety. PMID S2CID National Conference of State Legislatures. January 13, Retrieved November 23, Medical Malpractice and Compensation in Global Perspective.

Walter de Gruyter. ISBN Health Service Journal. October 11, Retrieved November 12, NHS England. January 29, Retrieved August 26, Annals of Health Law. Archived from the original PDF on September 5, Casopis Lekaru Ceskych. Office of Legal Research. Connecticut General Assembly. BMC Medicine. PMC