Editorial: The tort reform quagmire: A problem for everyone
By Stuart E. Mirvis, MD, FACR
is the Editor-in-Chief of this journal and Professor of
Radiology, Diagnostic Imaging Department, University of Maryland
Medical Center, Baltimore, MD.
In his second term, President Bush has again raised the issue of
medical tort reform as a major agenda initiative. In his first term
such reform proposals met their demise in the Senate. In spite of a
lack of action at the federal level, approximately 21 states have
passed some form of tort reform legislation in recent years.
Not surprisingly, in many states, these new laws are being
challenged in the courts.
Anyone who has undertaken even a cursory review of this subject
will realize immediately that it is immensely complicated. Trial
lawyers, physicians, medical insurance companies, health
maintenance organizations (HMOs), and, of course, the recipients of
medical care, our patients, have a vested interest in any changes
that occur. As in most public debates, all parties can play fast
and loose with the facts, emphasizing only those points that favor
their position, and expounding inflammatory rhetoric, hyperbole,
and sound bites in many cases. In all such complex issues both the
cause of the problems and any potential solutions lay with all
concerned parties, require acknowledging the contribution of each
to the problem, and, of course, demand willingness to
In a quite simplified version, the following issues seem to be
at the core of this matter.
- Many doctors are being priced out of practice (particularly
in high-risk fields such as obstetrics, neurosurgery, and
emergency medicine) by lofty and fast-growing malpractice
premiums. They are either leaving medicine, retiring early, or
moving to other states with lower premiums (for the moment).
- Insurance companies charge high premiums to make money (they
are, after all, businesses with stockholders) and to compensate
for ever-increas-ing settlement costs and jury awards.
- Lawyers representing injured clients seek actual economic and
punitive damages. They typically collect 30% to 50% of any awards
in compensation. They argue that this is justified by the very
high cost (risk) in pursuing malpractice cases and the high
number of cases in which the physician defendant prevails.
Plaintiffs prevail in roughly 25% of cases.
- Juries may impose exorbitant punitive damages that are
- Healthcare recipients expect expert care from physicians, who
are usually well-compensated, at a reasonable cost with
appropriate redress for substandard or injurious practice.
- Physicians do not impose strict enough oversight of their
profession to identify those members who require further
training, monitoring, and incentives to improve their practice
- The costs of healthcare are rising at an unsustainable rate
for individuals, businesses, and government.
A cap of $250,000 on "pain and suffering" awards for medical
malpractice lawsuits only provides a weak band-aid solution. The
Congressional Budget Office says the President's proposal would
lower medical malpractice premiums by 25% to 30%.
A recent study estimates that caps on recoveries have reduced
premiums by roughly 17% for states with caps compared with states
The following are some suggestions of areas for which action may
- Physicians and hospitals should aggressively support quality
improvement programs, periodic recertification, verification of
core competencies among all staff, and close monitoring for
medical errors. All caregivers who demonstrate deficiencies
should be provided with further training and evaluation, and, if
ultimately needed, professional sanctions to improve the overall
quality and safety of care.
- This editor believes that, to as great an extent as possible,
insurance companies, with their profit motive, should be
eliminated from providing malpractice coverage. Self-injured
trusts within or among hospitals, without a profit incentive, are
in a better position to work within institutions to address needs
for quality improvements. Private physicians not included in
hospital-based programs should be incorporated into a similar
arrangement under state group malpractice coverage programs.
- Medical malpractice claims should be mandated for arbitration
or review by professionals with knowledge of standards of
practice, current law, and expertise in assessing economic
damages. To avoid the huge costs of litigation, settlements
should be sought through such arbitration whenever possible.
Those complaints found to be without merit after review should be
dismissed. If recommended settlement proposals are rejected by
the plaintiff, all costs of future litigation should be borne by
the plaintiff and similarly for the defense. A much briefer time
limit (months, not years) for discovery and trial would be needed
to decrease costs, allow quicker financial relief for plaintiffs,
and decrease psychological stress for defendants.
- Juries, I believe, should not have the potential to award
open-ended punitive damages. Guidelines should be provided for
both real and punitive damages that are federally mandated. Some
kind of cap on punitive awards seems appropriate. Plaintiff's
lawyers argue that the need for just compensation for their
clients is a basic right, but this rings hollow given the large
part of any settlements that they receive. If the number of
malpractice cases that actually reach litigation is better
managed, attorneys' costs of practice should also be better
- The standard to which physicians, hospitals, and medical care
workers should be held should not be outcomes- based, since at
times outcomes are poor, even given the utmost quality of care.
Malpractice should be defined as care falling well below any
- standard of practice, as judged by true experts in the field,
not based on testimony by "hired gun" physicians. Physicians
should be accountable to their specialties for erroneous
statements of fact in trials. Some degree of willful negligence,
I feel, should be inherent as well. Medicine is quite imperfect
and very complex, and the spectrum for medical judgment should be
- Hospital oversight by organizations, such as the Joint
Commission on Accreditation of Healthcare Organizations (JCAHO),
should be strengthened and their findings made public. At the
same time, patients and their families need to be provided with
realistic expectations for medical care as well as ample
opportunity for communication to permit better understanding of
treatment and anticipated outcomes.
- Physicians should have adequate time with patients for
assessment and discussion. Deficiencies here are likely a major
culprit in sowing seeds of poor outcomes and misunderstanding.
However, this issue is, in itself, a hugely complex matter that
goes to the core of the current organization of medical care in
the United States.
These few suggestions are, of course, biased, as they come from
a practicing physician, but I hope they reflect at least some
balance in considering the many roots of and potential solutions
for the current and growing malpractice dilemma. If nothing else, I
hope they spur discussion among our readers and their associates or
contacts in medicine, law, government, hospital administration,
quality improvement/risk management, and even malpractice insurance
firms, since all are part of both the problem and the solution.
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Editorial: The tort reform quagmire: A problem for everyone.
February 10, 2005