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Tort Reform May be the Answer to Out-Of-Control Medical Malpractice Lawsuits

A Fictional Medical Liability Case

Imagine that you enter the hospital to have surgery. You're understandably nervous about the procedure, yet you take comfort knowing that your doctor is skilled and experienced in the procedure he is about to do. When you wake up, you sense something is wrong.

After you are completely conscious, a hospital representative informs you that you were given the wrong medication. In a situation that is easy to repeat, you were given medication that was meant for someone else. The doctors tell you they do not know what, if any damage you received. They have few answers for you. Now you are left with a decision to make. Will you or will you not file a medical malpractice lawsuit?

You decide to seek the advice of an attorney. In time, your case proceeds to court. Your attorney advises you that it is likely you will win your case. Maybe deep inside, you're excited at the thought that you will be awarded millions of dollars for pain and suffering and personal injury damages.

Although the above story is fictitious, these types of incidents can and do happen. These types of lawsuits caused health care costs to go up, malpractice insurance premiums to increase, and doctors to reduce care or face going out of business. While damage awards for the claimant may be high, the cost to everyone else is also high. To mitigate costs for the medical profession, the federal government considers legislation every year to limit the awards that can be made to injured parties in malpractice cases.

Is Federal Intervention Truly the Answer?

Republicans at the national level have been pressing for tort reform since 2003. They propose that award amounts for medical liability cases have gotten out of control. Doctors and other healthcare professionals are succumbing to the burden placed on them by the cost of their medical malpractice insurance premiums. To reduce this burden, lawmakers seek to make changes beneficial to the healthcare industry. While their efforts are noble, federal intervention presents its own sets of problems.

The States Respond

In response to protests from physicians around the country, many states have already enacted their own legislation to combat the malpractice nightmare. In many cases, the legislation has already begun to work. Although policy rates remain higher than policymakers hoped, premiums have begun to decrease.

Tort Reform at a Glance

While reform varies by state, several policies topped the list of new tort law reforms. Lawmakers targeted noneconomic damage reform in several states. This provision limits the amount of money awarded for pain and suffering and punitive damages. Many lawmakers felt that capping the two areas would reduce incentives for lawsuit filings. The maximum award allowed in most states for pain and suffering tops out at $250,000.

In years past, the courts did not allow defendants in a medical malpractice lawsuit to introduce evidence of other payments received by the claimant. States have addressed this issue by allowing defendants to introduce evidence of health insurance payments used to pay for injury treatment that the claimant seeks to recover in the lawsuit. This represents a huge victory for healthcare professionals.

Malpractice lawyers advertise their services on television regularly. Buried by the high cost of malpractice insurance, medical professionals probably view these people as ambulance chasing adversaries. Listening to the healthcare industry, legislators have begun placing limits on contingency fees paid to these attorneys.

Binding arbitration has successfully resolved a number of disputes without the intervention of the court system. Now defendants have this option available for medical malpractice lawsuits.

It seems unreasonable that a healthcare professional would be sued after providing emergency care to an injured patient. Unfortunately, lawsuits are brought against these professionals. Legislators have introduced legislation in many states to shield the professional from any liability in Good Samaritan cases.

Once a claimant wins a lawsuit, the defendant is sometimes required to pay the settlement in cash. Some new laws address this by allowing defendants to pay their judgments over a longer period of time. Defendants can purchase annuities that work well in that situation.

Most states already have some kind of statute of limitations law on their books. This is one of the few provisions presented that was not controversial, because it already exists in so many areas of law. Most states allow up to one year from the date of injury to file a claim.

Because many healthcare professionals and insurance companies claim that the majority of malpractice lawsuits are frivolous, new laws require an expert to testify that the defendant went outside accepted practices and procedures when the patient was injured. This provision is primarily intended to discourage unwarranted lawsuits.

In a large share of malpractice lawsuits, multiple parties are named as defendants. For instance, if the injury occurred in a hospital setting, the doctor, the nurses, and the hospital may be sued. If the judgment against the defendants was issued, hospitals often paid more than their share of fault. Joint and several liability laws make defendants liable for their proportion of the damage caused.