1. Quick Guide to Tort Reform Adapted from The EMRA Emergency Medicine Advocacy Handbook

2. Overview Definition The Malpractice Crisis Solutions Controversy Current Legislation

3. Definitions Tort –Any civil wrong in which the victim can seek legal redress from the person who caused them harm Tort Reform –Legislative proposals to regulate legal claims –Usually matter of state common law –Mentioned in federal legislation

4. History of the Malpractice Crisis Increasing rates/premiums leading to changes in physician practices –Doctors in low risk, high compensation areas More specialists, less primary care –Poor reflection of public needs and burden of disease

5. Malpractice History 1970s Crisis of Availability –Insurers left volatile markets –Physicians unable to find coverage –Liability reform leads to prototypical tort reform MIRCA (1975) Medical Injury Compensation Reform Act

6. Malpractice History 1980s Crisis of Affordability –Surge in premiums –Physicians cut back on high-risk practices –Practices closing entirely –Use of local joint underwriting associations with prohibitively high rates –‘Going bare’ without malpractice insurance

7. Malpractice History Millennium Crisis of Access to Care –Litigation forces physicians to shift practices in areas without medical liability reform Liability insurance survey by AHA (2003) –45% of hospitals reported loss of physicians/ coverage –Gaps in access to care widen –Students steered away from high-risk specialties

8. Malpractice Crisis Frivolous lawsuits clogging the system? –74% no payment –37% no medical error –3% no injury Torts reduce rates of patient injury? –Evidence supports shift to Defensive Medicine

9. Malpractice Crisis Who pays? –Physicians Higher malpractice premiums, closing of practices –Patients Increased premiums and costs of care, decreased access to care

10. The Solution Advocating for change requires understanding the issues: –Caps on Economic and Non-Economic Damages –Joint and Several Liability Reform –Comparative Negligence Reform –Collateral Source Rule Reform –Limitation on Attorney’s Fees –Prejudgment Interest Reform –Qualification for Expert Witnesses –Statutes of Limitation/ Repose Reform –Structured Payments for Damage Awards Granted

11. Caps on Economic / Non-Economic Damages Economic Damages –Loss of quantifiable income Personal income, medical costs, future care costs Non-Economic/Punitive Damages –Unquantifiable losses, companionship, consortium, vision 32 states with caps on punitive damages, 23 states with caps on non-economic damages (2008) ‘Hard’ and ‘Soft’ caps

12. Joint and Several Liability Reform Enacted in 40 states Each co-defendant held liable for proportional harm to plaintiff Formerly, each co-defendant held 100% liable, regardless of individual assessed liability –Attempts to define which defendant is most responsible for damages done

13. Comparative Negligence Reform If plaintiff partially responsible for his own injury, award reduced by proportional amount –Similar to joint and several liability Exists in most jurisdictions under case law Statutory changes limit various actions from being included

14. Collateral Source Rule Reform Allows evidence at trial to show if and how much the plaintiff’s losses have already been compensated from other sources (insurance, worker’s compensation) Eliminates plaintiff’s ‘double-dip’

15. Limitation on Attorney’s Fees Attorneys collect between 1/3 to 1/2 of judgment/settlement after expenses Reform to ensure: –Plaintiff receives majority of compensation –Discourage differential motivation from clients

16. Prejudgment Interest Reform Plaintiffs may collect back interest on any judgment for the duration of the lawsuit Intended to encourage quick settlements, often results in over-compensation when delays in judgment occur

17. Qualification for Expert Witnesses Traditional evidentiary standards define expert as witness with education, training, or experience to testify about issues in a case Reforms often include: –Clinical duty requirements –Similar practice backgrounds –Board certification –Actual knowledge based on active practice

18. Statutes of Limitation and Repose Reform Limitation –Limits on time a case can be filed from the date the negligence or medical malpractice occurred (Discovery Rule) Repose –Absolute limit on time to file regardless of discovery rule –Not present in most states

19. Structured Payment Systems for Damage Awards Granted Upon judgment, entire sum is due in full –Required in most states Reforms disperse payments over time to lessen financial burden

20. The Controversy Proponents of current tort system place blame for premiums on insurers –Accidents deterred by combining compensation for victims with physician responsibility –Capping malpractice payments does not ensure fair compensation or prevent unsafe practices

21. The Controversy Opponents contend standard tort reforms do little to change a dysfunctional system –Sweeping reform needed to prevent cyclical malpractice crises Malpractice payments do little to prevent unsafe practices or ensure fair compensation

22. The Current Legislation Many states with tort reform Federal legislation has been considered for several years Current information at AMA, ACEP websites –Each state chapter has state advocacy information

23. Get Involved! Key to reform is advocacy (Chap. 15) Write letters (Chap. 16) Share information (Chap. 19, 20 ) Participate in physician organizations (Chap. 19, 20) Advocate for reform!

24. References Schlicher, N.R. Emergency Medicine Advocacy Handbook. Chap.13,63-67.