Tort Reform vs. Practice Restructuring

Doctors may want to take their own advice that an “ounce of prevention is worth a pound of cure”

Recently a $130 million verdict was awarded to the plaintiff by the jury in one of New York’s most conservative counties. The medical-malpractice settlement in the case of Reilly v. St. Charles Hospital was the second largest in the state’s history. The case involved negligence in the birth of Shannon Reilly in 2002. An offer of $8 million was turned down by the plaintiff’s lawyers before the case went to trial. Lawyers for the hospital called the “jury out of control” following the verdict and announced the need for more tort reform.

However, evidence suggests that tort reform has not worked for 25 years and large verdicts may be the only way to make healthcare safer. The obstetric nurse at the Long Island hospital failed to monitor the mother and her fetus, missed signs that the baby was in distress and subsequently failed to take corrective action, the jury determined. Attorney for the plaintiff, Thomas Moore, said the child was born with severe brain injury and the medical errors were avoidable — jury members agreed.

Twenty-nine states have caps on pain-and-suffering awards but New York does not have any restrictions. Tort reformers claim that malpractice suits create higher healthcare costs but research conducted by the Congressional Budget Office, the Government Accountability Office and the Robert Wood Johnson Foundation have shown otherwise. The effect on malpractice insurance rates has been negligible. The Robert Wood Johnson Foundation concluded that premiums in states with tort-reform measures still increased.

There is one medical specialty, anesthesiology, which has actually experienced huge reductions in malpractice-insurance premiums. In 1982, the American Society of Anesthesiologists restructured all their procedures after a wide-ranging assessment of what had been injuring their patients. They established mandatory monitoring, limited the number of hours they could work and improved training procedures. Additionally, they redesigned some machinery and equipped others with safety devices.

After ten years, anesthesiologists’ malpractice insurance has dropped dramatically and today is one of lowest of any specialty medicine. Unfortunately, individual hospitals and other medical specialties have not been taking similar steps. They are focusing on tort reform rather than efficiency and safety.

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