Economics Reminds of Patient Safety Component of “Tort Reform”

The Chicago birth injury attorneys at our firm have consistently reported on the so-called “tort reform” efforts by some policymakers at the federal and state levels. The vast majority of birth injury cases are actually medical malpractice suits against medical providers who made errors during pregnancy or birthing process. Therefore any changes to the legal system as it relates to victims of medical errors will have direct consequences on victims’ ability to recover following problems they experience during childbirth. Unfortunately the debate itself rarely goes beyond the same talking points that have been mentioned again and again.

Most of the time those involved in the debate simply claim that the other side is only interested in money. For our part, it is a genuine concern that the loudest medical malpractice reform advocates are medical interest groups and the insurance lobby who stand to directly gain financially by taking away rights from medical error victims. However, we realize that those on the other side just as quickly claim that medical malpractice attorneys are against the measures solely because we work in the industry and are paid to help these victims. We continue to argue, that there is a difference between our advocacy and those of insurance companies. It is those pushing “reforms” who have the burden of showing that their proposed changes are not being made for their own financial interests. We are not advocating any changes to the legal justice system, but instead are simply fending off those who wish to change it from the system enshrined in the Constitution at the nation’s founding.

What makes the situation even more disappointing is the fact that the lives of patients will actually be affected by these decisions; it goes well beyond disagreements about money. Many experts in a wide range of disciplines have shown that eliminating incentives to act responsibly has serious detrimental effects on the quality of care. This was the same point made last week by an economics professional in a Huffington Post editorial. The professor reminded those engaged in the debate that the incentive structures currently in place by medical liability insurers would likely disappear if damage caps or other changes were made to the system. It is often forgotten that insurer’s play a key role in incentivizing proper medical care. The insurers have oversight structures where particularly negligent physicians are monitored and ultimately required to pay more depending on their perceive error risk. That risk is based on the providers past track record of care. There are clear incentives for doctors, nurses, and other medical professionals to take extra care to protect the patient and themselves. Yet, medical malpractice damage caps would remove those crucial incentives-likely leading to increased instances of neglect and inadequate care. Those involved in the medical malpractice debate should not ignore or minimize this point.

There are very real and serious consequences for meddling with the justice system in ways that hurts victims. It is even more disturbing that this meddling is being advocated based almost exclusively on anecdotal observation and not real evidence. For one thing, proponents spend most of their time complaining that victims are abusing the system for quick financial gains. That could not be further from the truth. Evidence consistently shows that three out of every four cases that are filed are eventually dismissed or withdrawn. The remaining cases are usually settled. Then, out of those that do not settle, three out of four eventually result in a verdict for the defendant. It is not easy to win these complex cases, and the burden remains on the plaintiff. Claims that suggest the legal system is an easy windfall for those involved are drastically misguided. The incorrect public perception is distressing enough, but the distress is made downright dangerous when one considers that it is the inaccurate perception that is guiding those who seeking to advocate for changes to the legal system.

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