Tort reform: the pathologists’ perspective

Abstract

Physicians who become ensnarled in malpractice litigation often feel that the tort system has treated them unfairly. This negative perception has fueled physician efforts to enact "reforms" intended to mitigate the damage that allegations of medical negligence currently have on both individual physicians and on the practice of medicine itself. Although physicians are generally enthusiastic about "reform," there is currently no definition that allows tort "reform" to be separated from related initiatives. Some physicians largely restrict the term to defendant-friendly changes in the rules and procedures governing the workings of the tort system, whereas others take a somewhat broader view. In the present paper, we have favored the broader approach to the topic, leading to a discussion of 30 measures that have been presented in the context of tort "reform." Although most of these measures involve changes in the complex rules governing the malpractice tort system itself (eg, capping jury awarded damages), our broader view of "reform" also includes attempts to exert influence on the tort system from the outside (eg, peer review of expert testimony) and measures designed to keep patient dissatisfaction out of the tort system (eg, apology for error). Some would argue for an even broader view of tort "reform" that would including measures for reducing the pool of dissatisfied patients. For example, trial lawyers have claimed that physicians have put far too much effort into "reforms" that reduce the legal consequences of committing medical errors, and not enough effort into "reforms" that would reduce the errors themselves. The latter point may or may not have some validity, but there is a natural demarcation between measures designed to align medical outcomes with patient expectations (eg, error reduction, better diagnostic technology) and others designed to improve the processes that resolve patient dissatisfaction. Only the latter meet our definition of tort "reform."