Question

Tort Reform- One potential area for health care system savings is the issue of tort reform. Based on what you have learned in this module, what are the major issues of tort reform? Do you believe there should be a limit on damages? What are the ethical issues regarding this debate?

Answer 1

Answers:
Tort reform advocates focus on personal injury common law rules in particular. In the United States, tort reform is a contentious political issue. US tort reform advocates propose, among other things, procedural limits on the ability to file claims, and capping the awards of damages.
The legal way of saying personal injury law is "tort law." It lays down the duties of a person who injures another. In our country, tort law serves to:
Top Ten Tort Reform Measures
1 Limits of non-economic damages
2 Evidence of collateral source payments is permitted
3 Limits on attorney contingency fees
4 Advance notice of a claim
5 Statute of limitations
6 Periodic payments of future damages
7 Alternative dispute resolutions
8 Good Samaritan provision
9 Limitations on joints and several liability
10 Expert affidavits
tort reform in this issue of the Journal of General Internal Medicine deftly tackles a number of the major issues in this vexatious policy area. The tort reform is a necessary but not sufficient measure to bend the health care cost curve. Although defensive medicine costs are small as a proportion of aggregate national health expenditures, without reforms to address the liability fear that drives defensive practices, it will be difficult to move physicians toward cost-effective health care delivery.
Studies of clinical behavior at the system or population level cannot disentangle motivations, and rarely can account for the clinical benefit of “defensive” practices. Survey research can probe personal motivations, but has different limitations. Because many physicians are attuned to defensive medicine as a problem, and their professional organizations agitate prominently against it, self-report data will always be prone to a “socially-desirable response bias”. In sum, the conceptual complexity of defensive medicine means that the even the most rigorous health services research will struggle to isolate its role as an independent driver of clinical decision making and its effects on the quantity and quality of services delivered. Consequently, it is difficult to draw strong conclusions about how much savings will result if defensive medical practice is reduced.
The medical liability system is replete with fundamental problems of misalignment that go far beyond defensive medicine. The most serious is the well-documented mismatch between negligent injuries and malpractice litigation4–6. Most instances of negligence do not result in malpractice claims, many malpractice claims do not involve negligent injuries, and the outcomes of malpractice claims often do not match the merits of the claim. Although this mismatch itself drives defensive medicine, because physicians cannot feel secure that practicing reasonable care will protect them from being sued, the point is consistently lost in discussions of the need to curb defensive medicine. Liability reform should focus on ways to enhance the system’s ability to achieve its core objectives: spurring improvements in quality and safety and compensating injured patients. Even if the goal of liability reform is more limited, to simply reducing defensive medicine, it is still imperative to address the mismatch problem.
conventional tort reforms like caps on noneconomic damages seek merely to limit the economic cost of malpractice litigation for providers, not to change fundamental aspects of how the liability system works.
The mismatch problem, high overhead costs, and the focus on individual culpability rather than systems breakdowns are all untouched by traditional reforms. For example, limiting the amount of damages for which nonprofit hospitals can be held liable, as some states do, can lead plaintiffs to target individual physicians. Pretrial screening panels add a layer of administrative costs to the litigation process, leading to higher litigation costs overall.
Conventional tort reforms also may not achieve the kind of quid pro quo that Hermer and Brody contemplate. They hope that tort reform will make physicians more likely to practice cost-effective care and to acquiesce to policy and practice changes that lower their reimbursement. Although damages caps have been shown to be associated with lower health care utilization in some contexts, as Hermer and Brody discuss, they address only one dimension of the fear that leads physicians to practice defensively. They limit the economic consequences of being sued, but do not necessarily reduce the risk of suit itself, nor any of the unpleasant aspects of the adversarial litigation process.