In its recently published report the Ohio Department of Insurance (ODI) reported that the number of medical malpractice claims filed in the state had fallen by about 30% in the last two years. Proponents of the tort reform that passed in the state in 2003 will claim that this is a sign that reform has worked to reduce frivolous medical malpractice lawsuits, but closer consideration might show that might not be so.
First, reports of “frivolous” medical malpractice lawsuits have always been exaggerated. According to a New England Journal of Medicine study in which doctors reviewed medical malpractice claims, 97% of all lawsuits filed were in response to a real, documented injury, and most injury claims (60%) were associated with medical errors.
Second, if the goal was to prevent frivolous lawsuits, we should actually see an increase in the percentage of lawsuits that resulted in compensation for the injured party, since frivolous lawsuits would be more likely to be stopped before they ever got started. However, the report showed that the percentage of claims filed that resulted in compensation was roughly the same in 2007 as it was in 2005 (22% in 2007, compared to 21% in 2005). This means that either the law has had no effect on reducing frivolous lawsuits, or fewer victims who deserve compensation are getting payment for their injuries.
Since the majority of medical malpractice lawsuits are the result of actual medical errors, we would only want to see medical malpractice lawsuits drop if medical errors are also decreasing. However, a recent report published by the Hearst Corporation estimates that medical mistakes continue to increase and that nearly 200,000 Americans die each year from preventable medical errors and hospital-acquired infections, about four times as many as die in auto accidents. With more people suffering as a result of medical errors, but the number of medical malpractice claims decreasing, it seems like tort reform has decreased access to compensation for people who have suffered injury or lost a loved one due to medical errors.
Third, if the goal of tort reform was to reduce costs associated with lawsuits, the report shows that it has been largely unsuccessful. The report shows that the costs associated with lawsuits, other than compensation for victims, has gone down by about 10%, but since the number of claims has dropped by 30%, the legal and investigative costs for each lawsuit has increased by nearly 50%, from $24,443 to $35,603. There are probably two main reasons for the increase in per-case legal costs. Increased requirements for evidence before a case can be filed and during a trial leads to more costs–medical experts are expensive. The other reason why cases are probably getting more expensive is that, with fewer cases to fight, insurance companies are consolidating their resources to fight harder per case, which might explain why fewer people who deserve it are getting compensation.
Most officials and commentators are reluctant to draw conclusions about the effects of tort reform, and, admittedly, this report represents a very small sample of data. But the signs do not look good.
If you have been hurt or lost a loved one as a result of a serious medical error, the medical malpractice lawyers at Robert W. Kerpsack, CO, LPA will fight for your rights. Please contact us today for a free consultation.