Medical malpractice is one area where tort reform is argued most heavily. Some concerns are that caps on damages might result in costs that ultimately fall on the taxpayer; other concerns are the increase in medical expenses for tests ordered before diagnosis by physicians hoping to eliminate a future claim of medical malpractice.
First, research medical malpractice for an understanding of the elements of this cause of action. Then, read the following two articles and answer the questions posed.
1. ‘Fixing Health Care Requires Tort Reform’
by Caitlin Kenney
Paul S., a doctor from New Mexico, writes:
Another issue that is important is the medicolegal cloud that hangs over everything we do. Your example of the cost of a Medicare patient differing between Florida and Colorado is a simplistic view of the issues. Why do MDs order more tests? I get no extra reimbursement for tests I order in the hospital — zero. The easiest thing for me is to “order the aspirin” and send the patient home. That way I get to go home early and see my kids.
The reason is because of the odds game. Medicine is not exact. We make diagnosis based on odds. Your patient example may have a 1-2 percent risk that this chest pain is a heart attack. 98 times I make the right decision to send him home, however, if I am wrong and the patient has a heart attack, I’m at fault. In states that have an onerous tort system (Florida is one of them), MDs treat patients not to miss the 1-2 percent heart attack as opposed to playing the odds this is simple non cardiac chest pain.
If you have ever been sued, it is an extremely distasteful experience. The opposing lawyers job is to prove you incompetent, saying the odds were against this being a heart attack does nothing to win over a jury or family members of a loved one that passed away. This causes MDs to practice defensive medicine — I am going to treat this patient as if this is a heart attack until proven otherwise. That means I will order the MRIs, CAT scans etc. You may catch that heart attack 1-2 percent of the time but the other 98 percent is wasted resources.
I guarantee that states that have a more robust tort system have higher medical charges. Bottom line, if you want MDs to be more economical, something medicine does not teach (“Do everything you can for your patient”), you are going to have to fix the medicolegal system. Even if I get sued on a case where I know I did nothing wrong and it’s unlikely to go to court, my malpractice premiums go up, and I have to take time away from my practice and family to deal with lawyers. This complaint is now permanently on my record. Fixing health care requires tort reform!!!!! Something President Obama has stated publicly he is unwilling to do! So much for change.
2. Doroshow, J. (2009, Nov. 9). Medical malpractice tort reform-we are already suffering and don’t need more.
If you listened to the rants and harangues of those trying to kill the House health care bill on Saturday, you couldn’t miss the endless blathering about tort reform, a term that almost no one really understands unless you happen to be a victim of medical malpractice or corporate wrongdoing. And then, you know.
Tort “reform” is a doozy of a misnomer. There is certainly nothing positive or beneficial about it. Tort reform laws, which now exist it nearly every state (although you’d never guess that after listening to those complaining how much we need it), make it more difficult for average people who have been injured, assaulted, or harmed in any way, to sue those responsible. The tort reform movement was created and funded by insurance companies, manufacturers of dangerous products, the tobacco industry, the medical profession, and other industries and professions. This movement is backed by enormous sums of money funneled primarily into conservative “think-tanks,” public relations, polling and lobbying firms. Tort reforms always hurt patients, consumers and average people. They are also extremely dangerous for the rest of us.
Even the Congressional Budget Office, who guessed there could be “savings” from enacting national menu of brutal “tort reforms,” cites studies showing that if enacted, thousands more would die every year. Some savings. What’s more, chances are you already live in a state with brutal “tort reform” laws on the books. Ask the Olsen family from California or the Gourleys from Nebraska, both with severely disabled teenage boys who traveled to Washington D.C. last month to plead that Congress not do to the entire country what lawmakers already did to them.
Steven Olsen is blind and brain damaged because, as a jury ruled, he was a victim of medical negligence when he was two-years-old. He fell on a stick in the woods while hiking. Under the family’s HMO plan, the hospital pumped Steven up with steroids and sent him away with a brain tumor, although his parents had asked for a CAT scan because they knew Steven was not well. (So much for “defensive medicine.”) Steven Olsen came back to the hospital comatose. Had he received the $800 CAT scan, which would have detected a growing brain mass, he would have his sight and be healthy today.
A jury awarded $7.1 million in non-economic damages for Steven’s avoidable life of darkness and suffering. However, the jury was not told of a two-decade-old cap on non-economic damages in the state — the very law that conservatives want imposed on the nation and that CBO “scored.” The judge was forced to reduce the amount to $250,000. The jurors only found out about it by reading it in the newspaper, provoking the jury foreman write a scathing letter to the editor in the San Diego Union Tribune about this horrible California law.
Colin Gourley suffered terrible complications at birth as a result of a doctor’s negligence. He has cerebral palsy. He could not speak until he was five. Irregular brain waves and the amount of time he has spent in a wheelchair have affected his bone growth. He has been through many surgeries. His twin brother, Connor, survived without injury.
A jury ruled that Colin was a victim of medical negligence, finding that $5.625 million was needed to compensate him for his medical care and a lifetime of suffering. But Nebraska’s law — a cap on damages — severely cut this jury verdict to a fraction of what Colin needs. As a result, Colin will have to rely on the state for assistance for the rest of his life. His family had to move from their home to pay for his care. They are now having to fight Medicaid for Colin’s continuing treatment.
In 1975, Indiana lobbyist Frank Cornelius, whose clients included the Insurance Institute of Indiana, helped secure passage of “tort reform” in Indiana. As he wrote in the New York Times on October 7, 1994,
I argued successfully that such limits would reduce health-care costs and encourage physicians to stay in Indiana — the same sort of arguments that now underpin the medical industry’s call for national malpractice reform. Today, from my wheelchair, I rue that accomplishment.
That is because beginning in 1989, Cornelius experienced a series of medical catastrophes — malpractice — that resulted in his “wheelchair confinement, respirator-assisted breathing and constant physical pain.” The law he helped pass prevented him from receiving enough compensation for this. He has since died.
The vast majority of states already have “tort reform.” Right now, the medical profession has more liability protections than any profession in the nation. They don’t need more, and we don’t need more.
Include in the paper:
1. What must the plaintiff prove to prevail in a claim of medical malpractice? Clearly define this legal doctrine, including the element of this cause of action. How does medical malpractice differ from a standard negligence claim?
2. What defenses, if any, exist for a claim of medical malpractice?
3. Evaluate arguments for and against tort reform in the area of medical malpractice. You are encouraged to illustrate your arguments by using real case examples, either researched or from the material provided.
4. Include new thoughts or ideas based on the module information. This is your reflection/insight that logically would flow from each information point presented.
As a helpful explanation, in the area of torts we see many causes of action that are comprised of “elements.” For instance, if we discuss a situation involving negligence, we would define negligence stating, “Negligence occurs when a person’s conduct falls below the standard of care, resulting in a breach of duty which is the direct and proximate cause of injury to another person or thing. The elements of negligence are 1) duty; 2) breach; 3) causation; and 4) damages.” Then, each element would be analyzed, determining whether each one was met. It is imperative that each element of a tort claim is met for the plaintiff to prevail in a suit.

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