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Holding Doctors Accountable: The Case Against Tort Reform

Updated on December 18, 2011

Tort reform seems to be high on the list of priorities by some of our congressional leaders, even former President Bush made his opinions known (YouTube video below for those who may have forgotten).

Tort reform would put a cap on awards, limiting damages to patients who have been injured due to negligence or malpractice. Also, it would put a cap on awards to families of patients who have died at the hands of a negligent physician. There would no longer be individual analysis of any given malpractice and/or negligence case—gross malpractice and gross negligence would not have any consideration whatsoever—meaning that no matter how negligent a physician is, his penalty would always be the same.

In discussing tort reform, there are three key elements that should be examined and understood:

How are malpractice rates determined?

What are the savings to health care costs?

Do frivolous lawsuits increase malpractice insurance?

For My Father

My father, who died at the hands of a drunk surgeon.
My father, who died at the hands of a drunk surgeon. | Source

Q: How Are Malpractice Rates Determined?

A: Like Auto Insurance Rates

Wouldn’t it be wonderful if we could walk into work after causing a car accident and inform our employer that we will need a raise in order to pay for our increased auto insurance premium? Doesn’t that seem ridiculous?

Many people find it reasonable, often feeling sympathetic, when a physician complains about the cost of malpractice insurance, but people fail to wonder why the rates might be high.

Malpractice insurance premiums, much like auto insurance premiums, are based upon data:

Type of Doctor:

What type of doctor is being insured (what type of car)? Anesthesiologists and obstetricians have higher rates, because their field is more prone to errors, accidents, and negligence (much like a certain car is more prone to theft and being pulled over for speeding tickets).  Insurance companies have to determine how much a mistake is likely to cost (how expensive is your car, and how much would it cost to fix if you were in an accident?). A mistake made by an obstetrician or an anesthesiologist is more likely to cause extreme injury or death than a mistake made by a general practitioner.


What is the doctor’s record (driver’s record)? Has a physician been involved in multiple lawsuits and settlements (car accidents)? Much like auto insurance companies, malpractice insurance companies reward physicians with customer loyalty (how many years have you been insured with the same auto insurance company) and quality patient care (accident-free).


How many patients does a doctor see in a year (how many miles do you drive in a year)? If a physician’s case-load is low, his malpractice premiums are less. If a physician’s case-load is high, his premiums are higher.

Malpractice Insurance Is Like Auto Insurance

photo courtesy of Patrick Doheny, Flickr
photo courtesy of Patrick Doheny, Flickr

OB-GYNs practicing their love with women


Healthcare Costs Decrease 0.5 percent. Death Rates Increase 0.2 Percent:

People believe that because a physician is forced to practice defensive medicine by ordering unnecessary tests that healthcare costs are increased. However, according to a report by the Congressional Budget Office in 2009, it was determined that defensive medicine contributes to only 0.3 percent of national healthcare costs; furthermore, that providers would save only 0.2 percent on malpractice insurance by capping awards to injured patients and family members of patients who have died. This totals a reduction in healthcare costs by a total of 0.5 percent. This would come at a cost of increasing the mortality rate by 0.2 percent; essentially, more people would die.


There are several mechanisms in place that prevent frivolous lawsuits.

Firstly, an attorney that files a frivolous lawsuit could be fined for wasting a court’s time.

Secondly, prior to taking up a court’s time, a judge reviews all the facts of a case and determines if it warrants a trial.

Many of you might be thinking of the McDonald’s case where a woman sued McDonald’s after spilling coffee on her lap. I’m going to use this case as an example. After reviewing the facts of the case, it was deemed that the customer should be allowed to have her day in court. Here’s why:

The coffee was kept at temperatures between 180 and 190 degrees. This is well-above what coffee is normally kept at—usually 135 degrees. The customer simply removed the lid (not while driving) and spilled the coffee, suffering from third degree burns—the worst degree of a burn. The burns were located on the customer’s inner thighs, buttocks, genitals, and perineum (between the anus and genitals). Hospitalized for over a week, the customer required intensive debridement and skin grafting.

Once knowing all the facts, the lawsuit doesn’t seem so frivolous, does it?

Additionally, jury’s determine the award, and a judge has every right to decrease the amount (and change a verdict, too).

Lastly, most malpractice cases are taken on a contingency basis, meaning that the plaintiff does not pay for any costs associated with a lawsuit until there is an award. I don’t believe there are many attorneys around that would be willing to spend their money, work for free, and risk getting fined for filing a frivolous lawsuit.


Taking into consideration the increased mortality rate in relation to the very small savings in health care costs, understanding that frivolous lawsuits are not actually all that common and realizing how malpractice premiums are determined, one should be able to surmise that the only people who benefit from tort reform are the physicians who have a record of practicing bad medicine.


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    • legalese profile image

      legalese 6 years ago

      Ask any physician and they will tell you (if they are being honest) that patients receive better quality healthcare simply due to the fact that doctors are afraid of lawsuits. In other words, if the fear of a lawsuit is removed from the equation, doctors would provide inferior healthcare to their patients. I think this ends the debate on tort reform.