Tort reform proposals are the spectre that haunts the legal industry: like a horror-movie monster, if we relax our guard it is certain to rise again. Whether the context is debate on newly-enacted healthcare legislation, concerns about the trial bar’s influence in politics, or even lectures on the moral decay of society, it seems that someone is always pointing a finger at plaintiffs and their attorneys. If only we could enact comprehensive tort reform, they say, then things would be different: healthcare costs would plummet, “junk lawsuits” would dissipate, a better life for all. The Illinois personal injury attorneys of Passen Law Group have always believed that that proponents of tort reform — namely, the insurance lobby and Corporate America — had it wrong.
Now, we have proof.
The argument usually advanced by proponents of tort reform sounds like this: with tort reform, there will be fewer personal injury and medical malpractice lawsuits, particularly meritless lawsuits. If doctors, hospitals, and other healthcare providers don’t have to plan for the defense of “junk” lawsuits, then they won’t need to practice so-called “defensive medicine” – tests and procedures that are not truly warranted or necessary, but are performed merely to avoid a lawsuit. Malpractice premiums will also drop. So goes the theory, anyway.
Although the new federal healthcare bill thankfully does not include tort reform, many states have enacted tort reform laws of varying severity. Ohio is one such state: tort reform cleared the legislature in Columbus five years ago. Five years later, Ohio’s healthcare costs, however, have increased.
Ohio’s tort reform package included draconian restrictions on the rights of plaintiffs to access the civil justice system: arbitrary cap on jury damages ($250,000 except in catastrophic cases), restrictions on punitive damages, and other measures designed to make it more difficult to take medical malpractice claims to trial. The Chicago personal injury attorneys at Passen Law Group strongly oppose such measures, as they unreasonably restrict the ability of the victims of medical negligence to recover all of the loss they have suffered. Indeed, such restrictions can often prevent victims from recovering even the out-of-pocket costs they incur due to the negligence of others.
While tort-reform advocates argue that such measures are justified because they will reduce healthcare costs, costs in Ohio still climbed. In the first four years since these unreasonable measures were imposed, the average cost of an employer-based family health insurance plans rose by about $2,000, or 19%. While some might argue that costs would inevitably have risen even more had these measures not been in place, this assertion is also belied by the facts. The average national increase over that same time period was 22% – virtually indistinguishable. Indeed, Ohio’s average cost increase was greater than that in Kentucky (which borders Ohio), a state that did not enact tort reform.
Nor is the result in Ohio an anomaly. When the costs of providing medicare are analyzed (providing a fairly reliable indicator of localized healthcare costs), costs appear to have little if any connection to tort reform. For instance, Texas has enacted tort reform measures very similar to those in Ohio. But Texas cities still have some of the highest average per person healthcare expenditures in the nation.
Since the passage of tort reform legislation, malpractice insurance premiums in Ohio have decreased slightly. But economists believe that this decrease was because premiums were previously arbitrarily inflated, due to a decline in the stock market and insurers’ corresponding need to shore up reserves, just before Ohio’s new laws were enacted. Thus, the drop in premiums was purely artificial. But whether the drop in premiums was at all connected to the legislation or not, the fact remains that none of these savings was passed along to the people of Ohio. As a society we must ask ourselves: Should we enact laws to protect the powerful insurance lobby and their astronomical profits, at the expense of denying the victims of the medical negligence the opportunity to have their voices heard and to receive fair and reasonable compensation determined by a jury of their peers? The Chicago medical malpractice attorneys of Passen Law Group believe the answer is clear.
For a free consultation with an experienced Illinois personal injury lawyer at Passen Law Group, call us at (312) 527-4500.
Tags: Chicago Personal Injury Lawyer, Illinois Medical Malpractice Attorney, Tort Reform
This ignores the fact that cost of lawsuits are hardly limited to the damages: the costs of defense are the greater issue, since these are the costs that flow through to malpractice coverage. If attorneys were serious about stopping bad care, they’d press for malpractice to be treated as criminal rather than civil – that would be as great a deterrent but would remove the profit incentive from litigation.
Thanks for your comments, FW Croft. I don’t believe the argument against tort reform ignores the costs associated with defending a lawsuit. Indeed, the plaintiff’s attorneys spend as much, if not more, prosecuting the lawsuit — because the plaintiff typically has to retain various experts, who often charge upwards to $1,000 per hour for his or her time. If the plaintiff does not prevail, the plaintiff attorney loses every penny he or she put into the case. This is incentive alone for the plaintiff attorney not to file a “frivolous” lawsuit.
Malpractice is addressed in the civil justice system, rather than the criminal courts, because the purpose is to compensate the victims of malpractice for their loss, rather than to punish the perpetrators of the malpractice. Typically, the negligence was unintentional. This is why many states, including Illinois, do not even allow punitive damage awards in medical malpractice cases (yet, another “tort reform” enacted in our state). Nonetheless, victims are often permanently injured or killed, may require medical treatment for the rest of their lives, and may have lost income or be permanently disabled for the rest of their lives. Through no fault of their own, their lives have changed.
The civil justice system allows them and their families to receive the only compensation available — money damages. This also serves as a deterrent for doctors, hospitals and other medical providers to act in the utmost interest of patient safety.