What does medical malpractice tort reform mean? Tort reform is legislation designed to put caps on pain and suffering, and non economic expenses, in order to reduce litigation or damages. One example of successful tort reform is the MICRA (Medical Injury Compensation Reform ACT) cap in California, which puts a cap at $250k for non-economic expenses, and has yielded some of the lowest medical malpractice rates in the country.The problem with the topic of medical malpractice is that it is a broad topic and not one that should be broad-brushed as it is in the media. We see four basic categories of medical malpractice ranging from the least frequent to the most frequent.
1. Immoral or criminal behavior includes things such as being intoxicated while operating on a patient, or performing procedures that are not necessary but are done for the doctor’s financial benefit. In these cases, most would agree that if an immoral or criminal act is proven beyond a reasonable doubt in court, a doctor should be held liable. We see very few such medical malpractice cases in this category, one or two a year; most doctors are fine people who do the right thing.
Tort Reform: Remove MICRA for this category of claims and under most circumstances the doctor should lose his ability to practice indefinitely, unless there is some extenuating circumstance.
2. Lack of training is also an issue that we have seen. Again some would agree that where it is proven that a doctor is performing a procedure that he is not competent in, he/she should be liable.
Tort Reform: Remove MICRA for this category of claims, and under most circumstances the doctor should lose his license to practice, and go back to school to be retrained and recertified in order to ensure competency.
3. The majority of claims are alleged accusations. A hundred and fifty years ago the leading cause of death for women and children was child birth. Today this is a rare event, however; when it does happen someone must be blamed. In any action that any of us do where a negative outcome may occur, someone can second guess you. If you are doctor, then you are held to a non-human standard. This is not right or fair.
Tort Reform: Non-economic damages will not be paid for; however lost wages will be compensated. These claims have to be submitted to independent judges who understand medical care, not the medical board which is run by doctors. The independent judges have the ability to throw out the claim if it is not the doctor’s fault, if the claim is in the “bad luck” or “stuff happens” category.
4. The one that is absolutely not fair is when an MD is charged with a 3rd party or vicarious liability claim. Dr B shares an office with Dr A, and Dr A gets sued by one of his patients. And the patient who is suing, sues Dr B too since he assumes that Dr B is in some sort of partnership with Dr A. Plus his attorney will do this to try to attach as many insurance policies as possible.
Tort Reform: Non-economic damages will not be paid for; however lost wages will be compensated. These claims have to be submitted to independent judges who understand medical care, not the medical board, and they have the ability to throw out the claim if it is not the doctor’s fault. If the 3rd party claims go forward and it is proven that the non-involved doctor is found innocent, the plaintiff’s attorney pays the legal expenses of the innocent 3rd party MD.
HCP National is a national medical malpractice insurance brokerage whose main office is in Orange County, CA. The above is our opinion. We are not a law firm and the above does not constitute legal advice.
