Quick Guide to Tort Reform

1. Quick Guide to Tort Reform Adapted from The EMRA Emergency Medicine Advocacy Handbook

2. Overview • Definition • The Malpractice Crisis • Solutions • Controversy • Current Legislation

3. Definitions • Tort • Any civil wrong in which the victim can seek legal redress from the person who caused them harm • Tort Reform • Legislative proposals to regulate legal claims • Usually matter of state common law • Mentioned in federal legislation

4. History of the Malpractice Crisis • Increasing rates/premiums leading to changes in physician practices • Doctors in low risk, high compensation areas • More specialists, less primary care • Poor reflection of public needs and burden of disease

5. Malpractice History • 1970s Crisis of Availability • Insurers left volatile markets • Physicians unable to find coverage • Liability reform leads to prototypical tort reform • MIRCA (1975) Medical Injury Compensation Reform Act

6. Malpractice History • 1980s Crisis of Affordability • Surge in premiums • Physicians cut back on high-risk practices • Practices closing entirely • Use of local joint underwriting associations with prohibitively high rates • ‘Going bare’ without malpractice insurance

7. Malpractice History • Millennium Crisis of Access to Care • Litigation forces physicians to shift practices in areas without medical liability reform • Liability insurance survey by AHA (2003) • 45% of hospitals reported loss of physicians/ coverage • Gaps in access to care widen • Students steered away from high-risk specialties

8. Malpractice Crisis • Frivolous lawsuits clogging the system? • 74% no payment • 37% no medical error • 3% no injury • Torts reduce rates of patient injury? • Evidence supports shift to Defensive Medicine

9. Malpractice Crisis • Who pays? • Physicians • Higher malpractice premiums, closing of practices • Patients • Increased premiums and costs of care, decreased access to care

10. The Solution • Advocating for change requires understanding the issues: • Caps on Economic and Non-Economic Damages • Joint and Several Liability Reform • Comparative Negligence Reform • Collateral Source Rule Reform • Limitation on Attorney’s Fees • Prejudgment Interest Reform • Qualification for Expert Witnesses • Statutes of Limitation/ Repose Reform • Structured Payments for Damage Awards Granted

11. Caps on Economic / Non-Economic Damages • Economic Damages • Loss of quantifiable income • Personal income, medical costs, future care costs • Non-Economic/Punitive Damages • Unquantifiable losses, companionship, consortium, vision • 32 states with caps on punitive damages, 23 states with caps on non-economic damages (2008) • ‘Hard’ and ‘Soft’ caps

12. Joint and Several Liability Reform • Enacted in 40 states • Each co-defendant held liable for proportional harm to plaintiff • Formerly, each co-defendant held 100% liable, regardless of individual assessed liability • Attempts to define which defendant is most responsible for damages done

13. Comparative Negligence Reform • If plaintiff partially responsible for his own injury, award reduced by proportional amount • Similar to joint and several liability • Exists in most jurisdictions under case law • Statutory changes limit various actions from being included

14. Collateral Source Rule Reform • Allows evidence at trial to show if and how much the plaintiff’s losses have already been compensated from other sources (insurance, worker’s compensation) • Eliminates plaintiff’s ‘double-dip’

15. Limitation on Attorney’s Fees • Attorneys collect between 1/3 to 1/2 of judgment/settlement after expenses • Reform to ensure: • Plaintiff receives majority of compensation • Discourage differential motivation from clients

16. Prejudgment Interest Reform • Plaintiffs may collect back interest on any judgment for the duration of the lawsuit • Intended to encourage quick settlements, often results in over-compensation when delays in judgment occur

17. Qualification for Expert Witnesses • Traditional evidentiary standards define expert as witness with education, training, or experience to testify about issues in a case • Reforms often include: • Clinical duty requirements • Similar practice backgrounds • Board certification • Actual knowledge based on active practice

18. Statutes of Limitation and Repose Reform • Limitation • Limits on time a case can be filed from the date the negligence or medical malpractice occurred (Discovery Rule) • Repose • Absolute limit on time to file regardless of discovery rule • Not present in most states

19. Structured Payment Systems for Damage Awards Granted • Upon judgment, entire sum is due in full • Required in most states • Reforms disperse payments over time to lessen financial burden

20. The Controversy • Proponents of current tort system place blame for premiums on insurers • Accidents deterred by combining compensation for victims with physician responsibility • Capping malpractice payments does not ensure fair compensation or prevent unsafe practices

21. The Controversy • Opponents contend standard tort reforms do little to change a dysfunctional system • Sweeping reform needed to prevent cyclical malpractice crises • Malpractice payments do little to prevent unsafe practices or ensure fair compensation

22. The Current Legislation • Many states with tort reform • Federal legislation has been considered for several years • Current information at AMA, ACEP websites • Each state chapter has state advocacy information

23. Get Involved! • Key to reform is advocacy (Chap. 15) • Write letters (Chap. 16) • Share information (Chap. 19, 20 ) • Participate in physician organizations (Chap. 19, 20) • Advocate for reform!

24. References • Schlicher, N.R. Emergency Medicine Advocacy Handbook. Chap.13,63-67.