Tort Reform Research Articles

An Overview of Medical Malpractice Law in the United States Including Legislative and the Health Care Industry’s Responses to Increased Claims

The increase in HIV infection in South Africa poses serious problems not only to medical services in this country, but also to its legal system. Some of the more immediate medico-legal problems surrounding AIDS are discussed: Informed consent to the testing for HIV antibodies, the maintenance of confidentiality and the question of whether health care workers may refuse to treat AIDS patients.

Treating Wrongs as Wrongs: An Expressive Argument for Tort Law

AbstractThe idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.

115 - Medical Malpractice following Spinal Epidural Abscess: A 30-Year, Multi-Database Investigation

BACKGROUND CONTEXT: Spinal epidural abscesses (SEA) present diagnostic challenges and can result in serious complications including neurologic compromise, sepsis and even death. While SEA presents a high litigation risk for health care providers, little is known about the specific medicolegal ramifications of this condition. Despite a growing interest in malpractice tort reform, few studies have analyzed case law in this field. This study examines the cases of SEA associated with malpractice litigation and the reasons for judgments for or against physicians. This enhanced understanding of the potential legal implications of SEA is important for both operative and nonoperative providers.

259 Emergency Medicine Political Action Committee Contributions in 2016 and Candidate Voting History on Firearm Background Checks

Firearm injuries are a leading cause of injurious death and traumatic ED visits in the U.S. The American College of Emergency Physicians’ (ACEP) Firearm Safety and Injury Prevention policy supports universal background checks for firearm transactions, encourages legislation that prevents high risk and prohibited individuals from obtaining firearms by any means, and calls for increased funding for research into firearm safety and injury prevention. We sought to determine the relationship between federal campaign contributions from the National Emergency Medicine Political Action Committee (NEMPAC), the largest emergency medicine political action committee, and candidates’ support of background check legislation. We analyzed NEMPAC’s contributions to House and Senate races in the 2016 election cycle to determine if the candidates they funded supported legislation favoring background checks. We obtained data on campaign contributions from OpenSecrets and legislative records from Project Vote Smart. Candidate support of background check legislation was measured by: 1) voting history on Senate Amendment 4750 (SA 4750) which called for universal background checks, and 2) co-sponsorship of H.R. 1217 which aimed to extend background checks to all commercial firearm sales, strengthen state cooperation with the national criminal background check system, and authorize a commission to study mass violence. We analyzed contributions in the 2016 election cycle compared to support for background checks. We limited the analysis to incumbents up for re-election as they had a record on these two bills. We report total contributions, average contribution per candidate, compared with t-tests, and proportion of candidates supported compared with chi-square tests. The Senate voted 44 for and 56 against SA 4750. In 2016 NEMPAC contributed $182,000 to 37 Senate candidates. Of this, $127,500 went to 21 of 29 incumbents up for re-election; $44,500 to 6 of 8 candidates who supported SA 4750 and $83,000 to 15 of 21 candidates who opposed SA 4750 ($5,563 vs. $3,952 per candidate, Dif $1,610, P = 0.25). NEMPAC supported 75% of incumbents who voted for SA 4750 compared to 71% of those against (P = .85). 189 House representatives co-sponsored H.R. 1217. In 2016, NEMPAC contributed $942,900 to 212 House candidates overall. Of this, $853,340 went to 187 of 394 incumbents up for re-election; $227,955 to 68 of 167 candidates who co-sponsored H.R. 1217 and $625,385 to 119 of 227 candidates who did not ($1,365 vs. $2,755 per candidate, Dif -$1,390, P < 0.01). NEMPAC supported 40.7% of candidates who co-sponsored H.R. 1217 compared to 52.4% of those who did not (P =.02). Analysis of contributions from NEMPAC to 2016 congressional candidates show that organized emergency medicine provided more total funding to incumbent candidates who did not support firearm background check legislation than to candidates in support of background check legislation. This analysis is limited as candidates’ positions on other issues of importance to ACEP and NEMPAC, such as tort reform, may be correlated with their positions on firearm legislation. Organized emergency medicine’s political contributions to 2016 congressional races were not aligned with ACEP’s policy on background checks.

The Failure of Sorryy: An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice

As part of the effort to contain the size and frequency of medical malpractice claims, many states have adopted apology laws. These laws make apologies from physicians to patients inadmissible in any subsequent court proceedings. The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a physician can apologize to his or her patient without risking those statements being used in court. Through the use of a unique dataset, this article corrects several misunderstandings concerning this new generation of tort reform. First, it shows that while apology laws may reduce the frequency and size of malpractice claims as intended, they may also have a perverse effect on patients’ propensity to litigate. If a physician knows more about whether a patient’s injury was caused by malpractice than the patient, an apology could alert the patient to that malpractice and encourage the filing of a claim. Second, the article provides the first empirical analysis of the effect of apology laws on clinical outcomes, investigating their ability to reduce the practice of defensive medicine. Examining over 1.6 million hospital stays for heart attack patients, the article finds no evidence that apology laws reduce defensive medicine. Apology laws do not decrease the intensity of treatment received by patients. In fact, they increase the medical resources used to treat heart attack patients, consistent with an increase in defensive medicine. Based on these empirical findings, the article concludes that apology laws are not effective tort reforms and that states should look to other policies if they wish to achieve the goals of apology laws.

Tort Reform and Innovation

AbstractCurrent academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develo...

When Guild Interests and Professional Obligations Collide

Physicians who work in medical organizations are called on to fulfill two roles: guild members who work to advance physician interests (eg, lobbying for tort reform) and professional society members who work to advance patient interests (eg, developing clinical guidelines). Most often, physicians' self-interest and their interest in patient well-being align. When they do not, members of a guild or profession may justify the prioritization of self-interest with a form of motivated reasoning (a process wherein physicians weigh data differently depending on whether it supports their a priori beliefs). This allows physicians to frame self-interest as being in the best interests of their patients (eg, tort reform makes malpractice insurance affordable and allows physicians to continue to serve their patients). When interests conflict, physicians must be cognizant of the forces at play, that is, self-interest or in-group interest on the one hand and obligations to patients on the other. This entails recognition and negation of motivated reasoning. Often the most difficult calculus is evaluating proposed actions that would disadvantage physicians but advantage patients. In such cases, the health care provider must be aware not only of the temptation to oppose the action for financial reasons, but also the equally natural temptation to frame the proposal as a threat to patient well-being. Ultimately recognizing that a central tenet of professionalism is the primacy of patient welfare should help physicians both to maintain their fidelity to patient good and to uphold their reputation for altruism.

Obstetric Delivery Practices and Malpractice Claims: Is There a Correlation? [26R

INTRODUCTION: This study assesses the correlation in trends between obstetric delivery practices and liability claims over 30 years. METHODS: A retrospective chart review was performed at a single Colorado hospital, averaging 4,690 deliveries per year, from alternating years between 1978 and 2012. The number of cesarean sections (CS), operative vaginal deliveries (OVD) and vaginal lacerations (3rd and 4th degree) were recorded. A database of obstetrics liability claims, provided by COPIC Insurance, was tabulated and correlated with delivery data. All liability data was occurrence based and aggregated per year. Analysis was performed with Pearson correlation coefficients. RESULTS: The CS rate for singletons increased from 13% to 25% from 1978 to 2012. OVDs decreased from 14% to 2.5%. Lacerations decreased from 10.2% to 1.5%. The number of obstetric claims increased steadily until 2006 and then decreased. There was a significant positive correlation between CS rates and obstetrics claims (P =.006). No significant correlation was found between OVD rates and liability claims (P =.073) or lacerations and liability claims (P = .052). CONCLUSION: A positive correlation between CS rates and liability claims was noted, while no correlation in OVD or laceration rates to liability claims was found. Together, these trends suggest that abandonment of OVD has not been protective from a liability perspective. The decreasing rates of CS and malpractice claims starting in 2006 are likely explained by Colorado's medical tort reform in 2003. Undoubtedly fear of malpractice affects obstetricians' management, however abandoning OVD in favor of CS has not proven to be a protective solution.

Malpractice Laws and Incentives to Shield Assets: Evidence from Nursing Homes

Empirical research on medical malpractice liability has largely ignored incentives to restructure to protect assets. This study provides evidence on asset shielding in the nursing home industry. There was a rapid increase in lawsuits alleging patient neglect or abuse in states with plaintiff‐friendly tort environments beginning in the second half of the 1990s. We document two apparent asset‐shielding trends in these states during the 1998–2004 period: (1) sales of homes by large chains to smaller, more judgment‐proof owners; and (2) a reduced propensity to “brand” chain‐owned units with names that linked them directly to the central corporation or sister units. Twelve states enacted tort reforms during the 2003–2006 period that placed caps on noneconomic damages. Using a difference‐in‐differences (DD) methodology, we find that the trends in asset‐shielding behavior abated or reversed in the states that enacted tort reforms. These findings suggest that tort law affects ownership and other organizational choices in this industry.

Participation of Emergency Radiologists in Tort Reform

Participation of Emergency Radiologists in Tort Reform

Love Does Not Mean Never Having to Say You’re Sorry

Love Does Not Mean Never Having to Say You’re Sorry

Relationship Between State Malpractice Environment and Quality of Health Care in the United States

One major intent of the medical malpractice system in the United States is to deter negligent care and to create incentives for delivering high-quality health care. A study was conducted to assess whether state-level measures of malpractice risk were associated with hospital quality and patient safety. In an observational study of short-term, acute-care general hospitals in the United States that publicly reported in the Centers for Medicaid & Medicare Services Hospital Compare in 2011, hierarchical regression models were used to estimate associations between state-specific malpractice environment measures (rates of paid claims, average Medicare Malpractice Geographic Practice Cost Index [MGPCI], absence of tort reform laws, and a composite measure) and measures of hospital quality (processes of care, imaging utilization, 30-day mortality and readmission, Agency for Healthcare Research and Quality Patient Safety Indicators, and patient experience from the Hospital Consumer Assessment of Healthcare Providers and Systems [HCAHPS]). No consistent association between malpractice environment and hospital process-of-care measures was found. Hospitals in areas with a higher MGPCI were associated with lower adjusted odds of magnetic resonance imaging overutilization for lower back pain but greater adjusted odds of overutilization of cardiac stress testing and brain/sinus computed tomography (CT) scans. The MGPCI was negatively associated with 30-day mortality measures but positively associated with 30-day readmission measures. Measures of malpractice risk were also negatively associated with HCAHPS measures of patient experience. Overall, little evidence was found that greater malpractice risk improves adherence to recommended clinical standards of care, but some evidence was found that malpractice risk may encourage defensive medicine.

Obituary: A Remembrance of Francis M. Howard MD (1922-2016).

Obituary: A Remembrance of Francis M. Howard MD (1922-2016).

Book Review

Book Review

Retaliatory RICO and the Puzzle of Fraudulent Claiming

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals' incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have "discovered" a new fraud-fighting tool. They've started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more "courageous" companies to follow suit. Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO's use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.

Products Liability and the Internet of (Insecure) Things: Should Manufacturers Be Liable for Damage Caused by Hacked Devices?

While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation might limit liability for manufacturers.

An analysis of malpractice litigation related to the management of brain aneurysms.

OBJECTIVE Given the highly complex and demanding clinical environment in which neurosurgeons operate, the probability of facing a medical malpractice claim is high. Recent emphasis on tort reform within the political sphere has brought this issue to the forefront of medical literature. Despite the widespread fear of litigation in the medical community, few studies have provided an analysis of malpractice litigation in the field. Here, the authors attempt to delineate the medicolegal factors that impel plaintiffs to file medical malpractice claims related to the management of brain aneurysms, and to better characterize the nature of these lawsuits. METHODS The online legal database WestLawNext was searched to find all medical malpractice cases related to brain aneurysms across a 30-year period. All state and federal jury verdicts and settlements relevant to the search criterion were considered. RESULTS Sixty-six cases were obtained. The average age of the patient was 46.7 years. Seventy-one percent were female. The cases were distributed across 16 states. The jury found in favor of the plaintiff in 40.9% of cases, with a mean payout of $8,765,405, and in favor of the defendant in 28.8% of the cases. A failure to diagnose and/or a failure to treat in a timely manner were the 2 most commonly alleged causes of malpractice. Settlements, which were reached in 25.8% of the cases, had a mean payout of $1,818,250. Neurosurgeons accounted for 6.7% of all defendants. CONCLUSIONS Unlike other medical specialties, a majority of the verdicts were not in the defendant's favor. The mean payouts were nearly 5-fold less in cases in which a settlement was reached, as opposed to a summary judgment. Neurosurgeons accounted for a small percentage of all codefendants.

Association Between State Medical Malpractice Environment and Postoperative Outcomes in the United States

The US medical malpractice system assumes that the threat of liability should deter negligence, but it is unclear whether malpractice environment affects health care quality. We sought to explore the association between state malpractice environment and postoperative complication rates. This observational study included Medicare fee-for-service beneficiaries undergoing one of the following operations in 2010: colorectal, lung, esophageal, or pancreatic resection, total knee arthroplasty, craniotomy, gastric bypass, abdominal aortic aneurysm repair, coronary artery bypass grafting, or cystectomy. The state-specific malpractice environment was measured by 2010 medical malpractice insurance premiums, state average award size, paid malpractice claims/100 physicians, and a composite malpractice measure. Outcomes of interest included 30-day readmission, mortality, and postoperative complications (eg sepsis, myocardial infarction [MI], pneumonia). Using Medicare administrative claims data, associations between malpractice environment and postoperative outcomes were estimated using hierarchical logistic regression models with hospital random-intercepts. Measures of malpractice environment did not have significant, consistent associations with postoperative outcomes. No individual tort reform law was consistently associated with improved postoperative outcomes. Higher-risk state malpractice environment, based on the composite measure, was associated with higher likelihood of sepsis (odds ratio [OR] 1.22; 95% CI 1.07 to 1.39), MI (OR 1.14; 95% CI 1.06 to 1.23), pneumonia (OR 1.09; 95% CI 1.03 to 1.16), acute renal failure (OR 1.15; 95% CI 1.08 to 1.22), deep vein thrombosis/pulmonary embolism (OR 1.22; 95% CI 1.13 to 1.32), and gastrointestinal bleed (OR 1.18; 95% CI 1.08 to 1.30). Higher risk malpractice environments were not consistently associated with a lower likelihood of surgical postoperative complications, bringing into question the ability of malpractice lawsuits to promote health care quality.

The Impact of State Tort Reforms on Imaging Utilization

PurposeDefensive medicine, broadly defined as medical practices that protect physicians from malpractice lawsuits without providing benefits to patients, can lead to wasteful use of health care resources and higher cost. Although physicians cite malpractice liability as an important factor driving their decisions to order imaging tests, little research has been done to examine the systematic impact of liability pressure on overall imaging. The authors examined the extent to which radiography use is influenced by malpractice liability pressure among office-based physicians. MethodsUsing National Ambulatory Medical Care Survey data from 1999 to 2010, the authors used multivariate difference-in-difference logistic regression to examine the effects of different types of state tort reforms on the probability of radiography orders by primary care physicians (PCPs) and specialists. ResultsThe probability that a PCP ordered radiography decreased when states enacted permanent caps on noneconomic damages (−1.0%, P < .01), periodic payment reforms (−1.6%, P < .05), and the total number of tort reforms (−0.5%, P < .05). Specialist physicians were responsive to two reforms: caps on punitive damages (−6.1%, P < .01) and the total number of medical tort laws (−1.2%, P < .01). The passage of new indirect reforms was found to reduce radiography orders for PCPs (−1.8%, P < .05), and the repeal of indirect reforms was found to increase radiography orders for specialists (+3.4%, P < .01). ConclusionsState tort reform seems to reduce physicians’ ordering of radiography. This analysis also suggests that reforms that make it harder to sue physicians have a stronger impact than reforms that directly reduce physicians’ malpractice claim payments.

WHAT DRIVES TORT REFORM LEGISLATION? AN ANALYSIS OF STATE DECISIONS TO RESTRICT LIABILITY TORTS

ABSTRACTThis article studies the timing of state‐level tort reform enactments between 1971 and 2005. Using discrete‐time hazard models, we find the level of litigation activity—as measured by incurred liability insurance losses, the number of lawyers, and tort cases commenced—to be the most important and robust determinant of tort reform adoption. Political‐institutional factors and regional effects—such as Republican control of the state government, single‐party control of the legislature and governorship, and a (relatively) conservative political ideology among a state's Democrats—are also associated with quicker reform adoption.