A significant motivating-factor for tort reform across the U.S. has been the assertion that physicians will practice better, more efficient medicine without the threat of so-called “frivolous” lawsuits or major monetary verdicts. In other words, they would not practice “defensive medicine,” ordering tests that aren’t really needed just to protect themselves from being sued. But has this assertion proven true? As it pertains to Emergency Room physicians, a recent study found no reasonable support for that position.
On October 16, 2014, The New England Journal of Medicine – one of the most respected medical journals in the world – published an article entitled “The Effect of Malpractice Reform on Emergency Department Care.” The authors included two physicians. The results of the study are best captured by the following quote: “Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice….”
The study focused on three states which have led the way in tort reform, with even more strict policies than Ohio. In Georgia, South Carolina, and Texas, the legislatures changed the standard of care requirement for emergency room physicians under their respective medical malpractice laws. In a medical malpractice case, a medical professional has a duty to comply with the basic standard of care for their respective field – that’s all. Failure to comply with this standard of care is known as “breaching” the standard of care, acting in a negligent manner, or committing medical malpractice. The legislatures in Georgia, South Carolina, and Texas – from 2003 to 2005 – passed legislation which stated that an ER doctor could not be liable for medical malpractice unless they displayed a higher level of negligence – gross negligence.
Black’ Law Dictionary defines gross negligence as “[a] severe degree of negligence taken as reckless disregard. Blatant indifference to one’s legal duty, other’s safety, or their rights….” That doesn’t sound good for victims of medical malpractice seeking justice in those states. But again, the supposed policy reason behind this legislation was that ER physicians would practice better medicine as a direct result, and reduce healthcare costs.
So, what were the results of the study? In both Texas and South Carolina, there were no policy-driven, positive changes to ER treatment –even when compared against other states with different policies. ER physicians in those states were still ordering the same expensive tests and adding to the cost of healthcare. Only in Georgia was a small 3.6% reduction in some defensive medicine tactics noted. Again, these are results from states that have enacted the most stringent tort reform in the county. If tort reform is as effective as its proponents allege, then the results in these states should be impressive and quantifiable. However, the resulting impact is miniscule to non-existent, at least for the ER physicians.
On the other hand, medical malpractice victims in those states have now lost the ability to sue an ER physician for making careless mistakes, even if those mistakes costs them their health or their life. Rather, they must now show that the ER physician made a “reckless” mistake with “blatant indifference” for their health if they want to receive any measure of justice. Given this reality, it makes one wonder: how are plaintiff’s attorneys somehow the bad guys in the medical malpractice narrative of tort reform advocates?
The common-sense reality should be that doctors make mistakes, and that plaintiff’s attorneys – through the reasonable, fair, and un-politicized structure of our judicial system – advocate for victims of those mistakes. That is why doctors and hospitals carry insurance. Advocates of “tort reform” promised the moon when arguing for new laws to protect careless doctors, but – sadly — it turns out to have been an empty promise. If a medical professional has made a decision which has negatively impacted your life, call the Ohio medical malpractice attorneys at The Eisen Law Firm to schedule a free initial consultation at 216-687-0900 or online.