Medical Malpractice Tort Reform By David M. Ottenwess, Esq, Meagan A. Lamberti, Esq, Stephanie P. Ottenwess, Esq, and Adrienne D. Dresevic, Esq The credit earned from the Quick CreditTM test accompanying this article may be applied to the AHRA certified radiology administrator (CRA) operation management domain. fessional livelihoods are protected and of the EXECUTIVE SUMMARY The mere mention litigious plaintiffs with frivolous lawsuits term “tort reform” is enough to evoke are deterred from bringing suit. While • A tort is generally defined as a civil wrong great passionate response from its myriad both sides make convincing arguments, which causes an injury, for which a victim proponents and detractors.* For the past the reality of medical malpractice tort re- may seek damages, typically in the form three decades, medical malpractice tort of money damages, against the alleged form lies somewhere in the middle. reform has remained a highly polarizing, wrongdoer. heavily contested legal issue which affects An Introduction to Tort Law • An overview of the tort system is detailed, not only physicians and attorneys, but specifically in the context of a medical Medical malpractice, or negligence law, malpractice lawsuit, in order to provide a also the great many Americans seeking better understanding of the practical healthcare each year. But why does this is just one subset of the legal behemoth evolution of medical malpractice litiga- legislation inspire such fervency in those that is tort law. A tort is generally defined tion and its proposed reforms. Rising that revile it and in those that champion as a civil wrong which causes an injury, premiums and defensive medicine are it? Ask its critics, which typically include for which a victim may seek damages, also discussed as part of the tort reform much of the plaintiffs’ bar, and the an- typically in the form of money damages, dialogue. swer is simple: medical malpractice tort against the alleged wrongdoer.1 Tort law • Because medical malpractice litigation reform strips individuals of their ability is that body of law that serves as the ve- will never disappear entirely, imple- to redress injuries that they have incurred hicle by which tort liability can be sought menting sound risk management and and right the perceived wrongs that have in a court of law against such wrongdoers compliance programs are critical to and generally serves to award damages to every radiology department in order to been committed against them. To its improve the safety and quality of the advocates, the answer is equally clear: a victim sufficient to restore him to the care that its radiologists and technolo- medical malpractice tort reform is the position he would have been in, had the gists provide. mechanism by which defensive medicine tortious conduct not occurred.1 Tort law is prevented, doctors’ personal and pro- typically governs three legal theories of a lawsuit: negligence, strict liability, and intentional torts. *Tort reform is a term that is often used interchangeably The element of damages in tort law is with medical malpractice reform. As will be described be- low, there are many different types of torts. Medical mal- of major significance and is integral to practice, also referred to as professional negligence, is only understanding the overall concept of tort a subset of the tort family. For our purposes, however, the reform, mainly because the “runaway terms tort reform, medical malpractice reform and profes- sional negligence will all be utilized within this article and juries” have been the subject of great will all mean the same thing. media attention and scrutiny. In tort law, 30 MARCH/APRIL 2011 RADIOLOGY MANAGEMENT RADIOLOGY MANAGEMENT MARCH/APRIL 2011 RM332_p30-36_Features.indd 30 3/14/11 4:25:20 PM While medical malpractice reform legislation was introduced at both the state and federal levels, attempts to pass real reform have taken hold on the state level, while attempts at passing federal legislation have been unsuccessful. compensatory money damages can be Tort Reform: What Has Been Done arbitrary and unpredictable and, as sought by a victim for both economic such, complicate the settlement process. and noneconomic losses.1 Economic In response to the criticisms of medi- Further, it is argued that losses for emo- damages seek to compensate an indi- cal malpractice litigation and the medi- tional distress and pain and suffering By David M. Ottenwess, Esq, Meagan A. Lamberti, Esq, vidual for quantifiable economic losses, cal malpractice crisis of the 1970s and are intangible and exceedingly difficult Stephanie P. Ottenwess, Esq, and Adrienne D. Dresevic, Esq such as lost income and medical bills, 1980s, physicians and malpractice insur- to assign a dollar value. Currently, over 30 while noneconomic damages are more ance carriers began to lobby heavily for states have caps on noneconomic damages speculative and seek to compensate an changes to reduce medical malpractice as applied to medical malpractice actions.3 individual for noneconomic losses, such tort liability. Proponents of medical mal- These limitations on noneconomic dam- as mental distress and pain and suffer- practice tort reform argued that as a re- ages vary across jurisdictions: some states ing.1 In certain rare scenarios, generally sult of changes to laws governing medical employ caps on both economic and non- involving egregiously reckless conduct or malpractice claims and their associated economic damages in medical malpractice behavior, a victim may also seek punitive awards, malpractice insurance premiums awards; some states apply noneconomic damages against a wrongdoer.1 would decrease. They further argued that damage caps only to certain types of mal- A significant medical malpractice cri- lower insurance premiums for healthcare practice claims, such as obstetrics; and, sis in the United States occurred in the providers would increase the number of other states allow for increased recovery 1970s and 1980s.1 During this time pe- practicing physicians, lower the costs of in particular scenarios, such as where the riod, there was a rapid rise in the num- healthcare for consumers and result in an patient has died or has substantial physi- ber of medical malpractice claims filed, overall improvement in available medical cal injury.1 Typically, the limit on non- as well as the size of awards made in care. These arguments obviously struck a economic damages varies on a state by medical malpractice actions. It has been chord in state legislatures throughout the state basis, with caps on damages ranging estimated by the American Medical As- country because by the mid 1980s, medi- from $250,000 to $500,000.1 sociation that in 1975 as many as 14,000 cal malpractice tort reforms had been The tort law concept of joint and malpractice suits were filed against phy- widely adopted. It is important to note several liability has also undergone sig- sicians. The average jury award in these that while medical malpractice reform nificant tort reforms in the context of suits was $171,000.1 The influx of medical legislation was introduced at both the medical malpractice claims. Tradition- malpractice claims and their subsequent state and federal levels, attempts to pass ally, joint and several liability allows a jury awards created a chain reaction that real reform have taken hold on the state plaintiff, who has been injured by two had a far reaching effect. Many private level, while attempts at passing federal or more wrongdoers, to recover the full insurance companies began withdrawing legislation have been unsuccessful. amount of his damages from any one of from providing insurance coverage, and the defendants that may have been in- the insurers that remained responded by State Reform volved in the tortious conduct. This has raising malpractice premiums. In 1975, it Tort law is a function of state law, with historically resulted in a injured party was documented that malpractice premi- each state providing different rules for seeking damages against the defendant ums had increased from anywhere from bringing about a tort claim. Procedurally, with the most financial resources. A 100% to 750%.1 The sudden increase in various states may approach tort claims party sued under a theory of joint and insurance premiums, coupled with the differently; however, the basic premise several liability may then seek contribu- loss of many private insurance compa- of a tort claim and the elements that a tion from the additional parties at fault, nies from the market, resulted in some plaintiff must prove in order to bring a so that the other defendants have to share physicians leaving particular practice ar- successful cause of action remains con- in the payment of damages. Often times, eas, or retiring from the practice of medi- sistent across all 50 states. however, contribution cannot be achieved cine altogether. It was the culmination of State laws capping noneconomic because the additional at fault parties lack these factors that sparked a call for policy damages has been just one of the legis- the financial means to contribute. As a re- change at both the state and federal lev- latively implicated medical malpractice sult, proponents of tort reform argue that els, and with that, modern medical mal- tort reforms. Advocates of tort reform joint and several liability is an inequitable practice tort reform was born. argue that noneconomic damages are concept because one defendant, generally RADIOLOGY MANAGEMENT MARCH/APRIL 2011 31 RM332_p30-36_Features.indd 31 3/14/11 4:25:20 PM Medical Malpractice Tort Reform the defendant with the most financial Michigan has achieved the near total to consider whether medical malpractice resources, is required to pay damages in elimination of all medical malpractice tort reform at the state level has achieved an amount considerably more than his litigation. Indeed, reform began to gain the movement’s stated goal: to reduce share of the total liability.