Health reform declared constitutional – Now we need tort reform? (Part Three)

10/05/2012 // Washington, DC, USA // Justice News Flash: Featured Column // Barry J. Nace // (press release)

The proponents of all this tort reform also claimed that there would be more doctors involved in rural areas but as the authors indicated “…the claim that tort reform brought hoards of physicians to Texas rural counties is plainly wrong.”

So, in return for tort reform that would somehow lower the cost of malpractice insurance and the cost of healthcare, what did the public/citizens of Texas get? What they got were limitations on their rights to be fully compensated if they are injured by a healthcare provider but no corresponding reduction in healthcare costs or malpractice insurance. How has that helped the citizens of Texas? Obviously it hasn’t. It has helped only one of the players – the insurance industry.

But, one need not rely only on the Texas experience. In July of 2012 the administrative office of the Pennsylvania Courts released statistics on medical malpractice filings and jury verdicts. Both pre and post “tort reform.” The results do nothing to contradict the Texas results. In fact, in Pennsylvania, a state of nearly thirteen million people in the year 2011, there were a total of only 78 verdicts for defendants in malpractice cases whereas a total of 32 for plaintiffs (or only 110 verdicts). That means that less than 1 in 100,000 Pennsylvania citizens had a jury verdict for or against them on a malpractice case. And of the 32, only 6 were for more than $5 million dollars. Ten were in the $1 – 5 million dollar range and 16 were for less than a million dollars.

The tort reform in the mid 00’s involved the need to obtain a letter that there was a viable malpractice case from a doctor. Statistics indicate an almost steady filing of claims in the years preceding the tort reform and the years after.

Another interesting aspect is that the tort reformers would claim is that because there was a defense verdict there must have been a frivolous claim filed. However, nothing could be more further from the truth. One cannot even have a case heard by a jury without meeting strict criteria of evidence. If that strict criteria is not met, the case is dismissed before a jury ever hears the totality of the evidence. There are many factors that would go into why the ratio of verdicts is generally 2 to 1 in favor of the defense: more experienced defense attorneys, likable physicians, the inability of the plaintiff to procure stronger evidence due to the “conspiracy of silence,” etc. But certainly the concept of a “frivolous” lawsuit is not appropriate as any frivolous lawsuit would not have even reached a verdict by a jury.

So what does all of this mean? It simply means that before the people and states give up their rights to be fully compensated for their injury regardless of by whom it was caused, one should just not listen to those who are calling out for tort reform now unless they have empirical data to prove their point. For those who claim to support the Constitution and the Seventh Amendment, which states: “In suits at common law in the right of trial by jury shall be preserved…,” why should any of us be willing to give up any of our rights just because someone such as the American Tort Reform Association, politicians, the insurance industry, or the American Medical Association says “we need tort reform?” No scientist in any field would agree that that is a proper way of reaching a decision. Indeed, one would say that making such statements that “we need tort reform” qualifies the entity or the person making such a statement to be totally ignored. They should be told to keep quiet and don’t come back until they have empirical evidence to support their position if they want to affect the rights given to the citizens/public by the Constitution of my state and my country.

Thus, when we hear those screaming for “tort reform” because the “Affordable Care Act” is now constitutional, stop and ask: “And the evidence for such an assertion is what?”

Clearly the tort reformers have persuaded the non-informed with the constant rhetoric to take away the rights of the public. And they did it and want it, without providing any corresponding benefit. That is not logical. And to now argue that the maintenance and constitutionality of the Affordable Care Act requires “tort reform” is without foundation.

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