Republicans and Democrats Have Different Tort Reform Priorities

During election season, many candidates like to talk about tort reform, especially as it relates to medical malpractice. In the current political climate, this is especially true of Republicans. However, Democrats sometimes identify tort reform as a concern, if only to demonstrate that they are not beholden to trial lawyers. Wherever you find yourself on the political spectrum, tort reform is a hot-button issue.

Republicans talk about the financial burden that medical malpractice awards and settlements place on physicians, their insurers, federal and state governments, and employers who pay for health insurance benefits. Democrats cite the needs and expenses incurred by those who suffered at the hands of negligent doctors who fail to diagnose or appropriately treat serious illness. And Illinois is right in the middle of the fight. Since 2005, Cook County, Illinois, has been called a "judicial hellhole" on the American Tort Reform Foundation's web site. Other sources point to Madison and St. Clair counties as part of the problem.

Malpractice Caps Unconstitutional in Illinois

Advocates of so-called tort reform in Illinois have tried to institute caps on medical malpractice and other personal injury awards three times. The resulting laws have been ruled unconstitutional by the Illinois Supreme Court three times, the last time in February of 2011. In this instance, the court ruled that the legislature had exceeded its authority and was seeking to interfere with judicial rulings by limiting the amount that could be awarded for pain and suffering.

Although most tort reform efforts have originated with the states, the federal government has weighed in as well. In early 2011 the House of Representatives introduced a bill, H.R. 5, known as the HEALTH (Help Efficient, 
Accessible, Low-cost, Timely Healthcare) bill. The bill has been languishing in Congress since May, and even pundits who support tort reform seem to admit that the bill was poorly constructed and that it should fail.

Issues in the Tort Reform Battle

Some of the questions at issue in the battle over tort reform include:

•· Rising health care costs: Advocates of tort reform argue that capping malpractice awards would reduce medical malpractice insurance premiums and thus lower health care costs.

•· Patient care: Opponents of malpractice caps believe that removing the incentive of financial harm from medical treatment will lower the quality of care patients receive.

•· Constitutionality of tort reform: Can the legislature interfere with judicial decision-making, as the Illinois Supreme Court argued?

•· Effectiveness: Will tort reform really have any meaningful impact on the nation's health care costs?

Some answers to questions such as these were recently offered by William Sage in the Health Affairs blog. Sage, both an attorney and a physician, was the Clinton administration's point person on medical malpractice insurance and one of the recipients of a Pew Charitable Trust $3.5 million grant to study medical liability.

His observations on the issue include:

•· Medical malpractice insurance premiums play only a marginal role in the overall cost of health care.

•· Tort reform efforts are politically motivated and reflect the need for candidates to assuage powerful medical organizations such as the American Medical Association (AMA).

•· Reports that doctors leave states like Illinois are exaggerated. Rather, new doctors may be more likely to establish themselves in states that have enacted tort reform. Similarly, older physicians are less likely to retire early in tort reform states. Sage estimates that this represents a possible 3 per cent increase in the supply of doctors in tort reform states - an amount he calls "not trivial". However, he goes on to say that 3 percent is "hardly a magic bullet, either."

•· Medical malpractice claims do not accurately reflect the actual number of physician and other provider errors. If anything, there should be more claims.

•· Opponents of malpractice insurance reform have not offered a meaningful alternative to the current system. Capping malpractice awards will not improve health care as it is experienced by individual patients. Rather, it will benefit insurers, large medical organizations, and providers.

And what of the latest ruling by the Illinois Supreme Court overturning the 2005 Illinois law establishing caps on malpractice awards? The case in question, LeBron v. Gottlieb Memorial Hospital, involved a girl of 13 months who was brain damaged at birth. The court indicated that it was not persuaded by the fact that other states had enacted caps on awards. It further observed that other jurisdiction's statutes cited by the defense were inconsistent and provided no clear guidance. Given the confusion around medical malpractice and other personal injury awards, individuals thinking about a medical malpractice lawsuit should consult a knowledgeable Illinois attorney .