Tort Reform & Medical Errors: Is it Worth the Price?


In our business, we are routinely requested to locate medical experts to review and opine on medical cases such as sponges left in post-surgical patients, surgeons operating on or removing wrong body parts, and patients given wrong amounts of prescriptions that may affect them for a prolonged period of time or the rest of their lives.  Many of these medical errors lead to death, which it turns out, may not be included in the death certificate as the actual cause.

A recent study, published by the BMJ on Tuesday, shows that medical error is the third leading cause of death in the United States.  It is estimated that about 251,000 persons die each year as a result of medical error and that means 100,000 more people die as a result of medical errors than from COPD which is the fourth leading cause of death.  The interesting fact is that the death toll from medical mishaps would be even higher if nursing homes and out-patient care were included, the researchers found.  Martin Makary, a professor of surgery, at the Johns Hopkins University School of Medicine who led the research, said in an interview:

“Human error is inevitable. Although we cannot eliminate human error, we can better measure the problem to design safer systems mitigating its frequency, visibility, and consequences. Strategies to reduce death from medical care should include three steps: making errors more visible when they occur so their effects can be intercepted; having remedies at hand to rescue patients and making errors less frequent by following principles that take human limitations into account.”

Medical Deaths 2013

Source: National Center For Health Statistics, BMJ

Tort Definition

French for wrong, a civil wrong, or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. In a legal case, a tort claim would seek to obtain damages as a result of the injury claimed usually in the form of money.

Who Pays the Price?

Medical errors do not just affect the individual patients but also their family members and friends. Some medical errors do not cause immediate death but affect the individual for the remainder of their life in sometimes dramatic and life altering ways.  It is possible to consider that there are a greater number of medical errors that cause long term injury and shorten or lead to shortened life, reducing the quality of life and therefore do not cause immediate death and are never reported as a medical error.

What is Tort Reform?

Tort reform has been a political process wherein state and federal lawmakers have worked towards passing laws which place limits or caps on for punitive damages that are awarded in personal injury cases.  In addition, there are states like Tennessee that have “Contiguous State Rule” which requires that health care professionals testifying as experts, among to other requirements, be licensed to practice in Tennessee or a bordering state.

Why is it Important and Who Pays the Price?

With current tort policies in place it is more difficult for injured people to file a lawsuit. It is more difficult for injured people to obtain a jury trial and there are limits on the amount of money injured people receive in a lawsuit.

The argument in support of tort reform has been that that caps on damages are necessary for protecting society from the crushing costs of unreasonable jury verdicts.  Many cases including arguably the most famous, the McDonalds Hot Coffee Case were cited as examples of what was wrong with the judicial system and why it needs to be fixed.

What is Malpractice?

Malpractice is a professional’s improper or immoral conduct in the performance of duties, done either intentionally or through carelessness or ignorance.  Damages as a result of medical malpractice occur and are not necessarily reported.  Settlements are reached and non-disclosure agreements are made where the cause of the medical mistakes kept from the public and as a result, mistakes are not disclosed and therefore repeated.  Prof. Makary, said in an interview “It boils down to people dying from the care that they receive rather than the disease for which they are seeking care.”  For example, when aviation accidents such as plane crashes occur, thorough investigations are made, reports are developed and evaluation is made to minimize the potential for re-occurrences.  In the case of medical accidents, a wall of silence is built around medical error and the public continues to suffer, sometimes in silence. But asking hospitals and doctors to self-report their mistakes without offering a higher degree of protection from possible prosecution is a tall order, Makary acknowledged.  “It is difficult to create an open and honest conversation around the problem of people dying from the care that they have received”