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Tort Reform Has Not Led to an Increase in Patient Safety

Many medical professionals and facilities are shielded from full liability for their mistakes

Tort reform refers to a group of laws that makes it more difficult for people to hold accountable those whose carelessness cause injury. Various laws make it harder to file lawsuits or to get a jury trial. Others put limits on the damages an injured victim can recover, even where the victim proves the damages exceed the limits. Medical malpractice laws have been especially affected by tort reform and its supporters, who generally do not want doctors to be held accountable for their carelessness. Unfortunately, tort reform laws have not led to increased patient safety. In fact, by many reports, patient safety has declined tremendously, with many preventable errors going unreported by healthcare facilities.

For example, diagnostic errors, which include inaccurate or delayed diagnoses, are present in all settings of care. One conservative estimate found that around five percent of adults in the United States who seek outpatient care experience a diagnostic error. Post mortem examinations (autopsies) reveal that diagnostic errors may contribute to one-tenth of all patient deaths. These types of errors are the leading type of paid medical malpractice claims, and nearly two times as likely to cause a patient death, representing the highest proportion of total payments.

Another study showed that, during 3,675 medication administrations during operations, 193 events, which included 153 medication errors and 91 adverse drug events, were noted. Roughly 80 percent of those events were preventable. Most frequently, the errors were mistakes in labeling, incorrect dosage, failing to properly treat a problem indicated by the patient’s vital signs, and documentation errors.

Bacterial infections are also increasing in hospital patients—in fact, they are growing at a double-digit rate as the population ages, ultimately costing healthcare programs billions of dollars every year. Disturbingly, severe sepsis with a major complication was the second most frequently billed diagnosis submitted to Medicare in 2013. The 398,000 cases reflected a 15 percent increase since 2012, and a 24 percent increase since 2011. Such infections cost several billion dollars to Medicare each year.

According to JAMA Surgery, every year, there are roughly 500 surgeries on the wrong body part, and up to 5,000 surgical items are unintentionally left inside patients’ bodies. These retained items can lead to readmission, additional surgeries, abscesses, intestinal fistulas, obstructions, visceral perforations, and, in the most serious cases, death. The average cost of removing such an item was estimated in 2007 to be approximately $63,631, with damages in subsequent lawsuits exceeding $2 million.

Hospitals stand to receive major profits when patients suffer from complications on the operating table. When paid by private insurers, for example, hospitals earned 330 percent higher profit margins on surgeries with at least one complication. When covered by Medicare, hospitals earned 190 percent higher profit margins. This translates into an additional $30,500 per faulty surgery, on average. Thus, hospitals stand to receive substantial sums of money from mistakes, knowing that the average citizen’s recovery in a medical malpractice suit is severely limited. One study stated that doctors do not expect to bear the full cost of their negligence, since the majority of injured patients do not file a claim.

Let’s face it: when people are allowed to act carelessly and are not held accountable for that carelessness, carelessness will increase. It isn’t rocket science. And when hospitals actually profit from some forms of carelessness, carelessness grows and patient safety is sacrificed. The end result is more carelessness and more injured victims. Tort reform doesn’t increase patient safety; it just ensures that when people are injured due to carelessness, they won’t be adequately compensated. In the worst cases, such victims are forced to turn to the government (Medicaid and other “entitlement” programs) to get the future care they need, which puts an unnecessary, additional burden on the government and, therefore, on taxpayers.

At The Eisen Law Firm, our Cleveland medical malpractice attorneys are highly skilled in successfully handling medical malpractice claims. We understand how to analyze medical records and determine where your healthcare provider was negligent. We also understand the ins and outs of “tort reform” and its impact on your case. To schedule a free consultation and case review, call The Eisen Law Firm at 216-687-0900, or contact us online.