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Feb 20, 2024
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Uploaded by LieutenantHeron3985
Tort Reform Comparison
Catherine O Guerrero
CSU Global
HCM515: Health Law and Ethics
Dr. Borges
12/31/2023
Tort Reform Comparison
Tort is an act or civil wrongdoing by an individual that causes injury to another person whether the act was intentional or unintentional. (Cline, 2021). It is a difficult concept to grasp as it pertains to not only physical, but mental or monetary injuries as well i.e. medical malpractice. The tort reform has now made it increasingly more difficult for an individual to file a lawsuit against a physician or medical practitioner. The intended goal for tort reform was to lower the number of impractical lawsuits medical providers were facing from their patients. (Cline, 2021). While this may seem to be unfair to patients that are seeking reformation, it was to create an environment where cases were taken seriously that were serious in nature while simultaneously ensuring health insurance premiums were cost effective for patients. Fewer lawsuits equal lower premiums. (Cline, 2021). Tort reform in the context of healthcare aims to address issues related to medical malpractice lawsuits, such as their frequency, cost, and impact on healthcare providers. The question of whether tort reform is beneficial to the American healthcare system is complex and often debated. Advocates argue that tort reform could have several potential benefits such as reduced healthcare costs and even increasing access to care. Proponents argue that by limiting the amount of damages awarded in medical malpractice cases, tort reform could lower medical liability insurance premiums for healthcare providers. This, in turn, might reduce the overall cost of healthcare. Lowering insurance premiums could encourage more healthcare providers to practice in certain areas or specialties that might otherwise have high liability risks. This could potentially improve access to healthcare in underserved areas. However, of course we must identify the potential negatives of tort reform as well. By limiting damage, particularly subjective ones such as pain and suffering, this might hinder injured patients' ability to receive fair compensation for their losses. Critics argue that this could disproportionately affect those with severe injuries. The argument can be made that by limiting liability, tort reform might reduce the
incentive for healthcare providers to maintain high standards of care. Without the threat of significant liability, there could be less motivation for providers to prioritize patient safety.
According to an article in the Journal of Neurosurgery, only 35 states have tort reform laws. All 35 of these states have a cap on noneconomic damages, meaning subjective damages such as emotional, suffering and inconvenience. According to the American Medical Association, Washington State has implemented several tort reform laws, although they may not be as extensive as those in some
other states. Washington has caps on non-economic damages in medical malpractice cases. Non-
economic damages typically include compensation for pain, suffering, emotional distress, and loss of consortium. However, Washington's Supreme Court has ruled some of these caps were unfair in the past, so the application can be limited. Washington operates under joint and several liability, meaning multiple defendants in a lawsuit can be held responsible for the entire amount of damages i.e. if multiple members of the care team were neglecting a patient. Washington allows for periodic payments
of future damages in medical malpractice cases. (Washington State Legislation, n.d.) This means that instead of a lump-sum payment, damages for future medical expenses or care can be paid out in installments over time. There are also specific caps on punitive damages. Punitive damages are awarded to punish the defendant for particularly egregious behavior rather than compensating the plaintiff for losses.
Perhaps the most interesting law coming from Louisiana is the amount of money paid from the defendant. Previously, there was no cap on the amount the defendant would pay, but now Louisiana has
implemented the total will be equal to what the plaintiff has paid in medical bills. (Reid & Lewis, 2020) This means that regardless of how much the plaintiff is billed, they are only reimbursed the total paid. This state has a history of higher insurance rates due to the lack of funds paid forward by employers and to help drive medical costs down. (Barnes, 2022) However, it has specific caps on both economic and non-economic damages, which can vary based on the type of case and circumstances similar to
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Washington. According to the AMA, Louisiana’s reform laws do not have limits on the amount of money to be paid back for attorney laws unlike Washington that relies on the court’s discretion.
Florida may seem like the strictest state of the three. As of 2023, Gov. Desantis signed a new law
into effect limiting the timeframe a patient has to file a lawsuit. (Chiumento Law, 2023). This change is thought to help both parties involved to alleviate the extensive costs associated with longer lawsuits. The AMA shows that like Louisiana, Florida has comparative fault forcing the plaintiff to still receive payment regardless of how much fault is placed on the defendant. It allows periodic payments for future
damages in medical malpractice cases. Florida and Louisiana both share similar bad faith claim laws, the new legislation states that as long as the insurer has paid the maximum amount allowed per policy or amount demanded by claimant, it is not considered bad faith. (Chiumento Law, 2023). In summary, while Washington tends to have fewer tort reform laws compared to Louisiana and Florida, all three states have implemented measures such as caps on damages and rules regarding fault in each cases. Louisiana's unique healthcare system and Florida's lengthy history of tort reform efforts differentiate them further from Washington in terms of the specific laws and their impact on civil litigation.
References
Cline, M., (2021). What is Tort Reform and How does it Affect my Healthcare Negligence Claim? https://www.medmalfirm.com/news-and-updates/what-is-tort-reform/
LeFever, D., Demand, A., Kandregula, S., Vega, A., Hobley, B., Paterson, S., Trosclair, K., Menger, R., Kosty, J., & Guthikonda, B. (2020). Status of current medicolegal reform in the United States: a neurosurgical perspective. Neurosurgical Focus FOC, 49(5), E5. https://doi.org/10.3171/2020.8.FOCUS20616
Washington State Legislature. (n.d.) Retrieved from https://app.leg.wa.gov/rcw/default.aspx?cite=4.24
Reid, C., Lewis, Liskow. (2020). Louisiana Governor signs 2020 Tort Reform Legislation. https://www.theenergylawblog.com/2020/07/articles/litigation/louisianan-governor-signs-2020-tort-
reform-legislation/
Chieumento Law Firm. (2023). Florida’s 2023 Tort Reform Law. https://www.legalteamforlife.com/2023/09/florida-2023-tort-reform-law/
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