How tort reform could increase access to justice for patients

Limiting damages in medical malpractice cases — what most people think of as “tort reform” — could become a hot topic again if Georgia legislators finally try to reimpose the caps thrown out by the state Supreme Court in 2010. Reformers, of course, say the threat of multimillion-dollar lawsuits prompts doctors to practice defensive medicine, needlessly costing our health-care system billions.

Critics say the caps effectively reduce access to the justice system by making malpractice cases less attractive to plaintiffs’ attorneys. But judicial access could hardly be lower than it is under the current system.

That’s the upshot of a new study by an Emory University law professor, who suggests another feature of today’s jackpot justice — the high cost of pursuing a malpractice case — already prevents most people injured through medical negligence from having their day in court.

“The vast majority of attorneys reject the majority of cases they screen,” says Joanna Shepherd-Bailey, author of the new study, “Justice in Crisis: Victim Access to the American Medical Liability System.”

In fact, Shepherd-Bailey’s survey of plaintiffs’ attorneys across the nation found they tend to reject more than 90 percent of the potential cases brought to them.

Why? Money.

The American Bar Association reports the cost of litigating a med-mal case ranges from $50,000 to $500,000. Based on her own research and others’, Shepherd-Bailey says a good rule of thumb for the cost of taking a case to trial is $100,000.

Because most plaintiffs’ attorneys work on a contingency-fee basis, they tend to take a case only if they expect to win it, and to win it big. If the cost of taking a case to trial is $100,000, and a lawyer charges a contingency fee of 33 percent, he has to feel confident in winning a verdict of at least $300,000 just to break even.

Even in many cases in which the patient died, Shepherd-Bailey said during a recent press conference at the state Capitol, “damages often are not high enough to be worthwhile for attorneys to take the cases.”

The result is less than 3 percent of actual victims of malpractice, not counting those who file frivolous claims, end up being compensated, she said. The people least likely to secure legal representation are the very ones held up by defenders of the old system as being in need of protection: the poor and the elderly, groups whose low incomes tend to dampen the damages juries award them, thus making them less attractive to attorneys.

That’s not my idea of an equitable system.

The answer isn’t to award even higher damages; history proves that approach just drives up the cost of litigation and exacerbates the problem. It’s to find a different approach.

I wrote about one alternative almost a year ago: a move to a workers compensation-style administrative court. This would put the focus back on determining whether someone was harmed, ensuring doctors and hospitals were aware of the problem, and compensating real malpractice victims.

The big awards at the top would still be curbed, with the salutary effect of reducing the costs of defensive medicine. But a lot more than 3 percent of real victims would stand to get some compensation.

In light of Shepherd-Bailey’s findings, Georgia’s legislators would do well to give the idea a serious look next year.

(Note: This column originally ran in the print edition of the AJC on Sunday, Oct. 7. I did not post it online at the time because I was out of the country and commenting was in moderation; I thought it would be better to wait until I returned and a discussion could take place on the comment thread.)

– By Kyle Wingfield

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33 comments Add your comment

Logical Dude

October 11th, 2012
11:38 am

quoting: In light of Shepherd-Bailey’s findings, Georgia’s legislators would do well to give the idea a serious look next year.

But will it still pass the Georgia Supreme court? What were the implications of the previous case that went to the SC?
Yes, the reform is all well and good, but only if it passes legal muster. If it can’t do that, we’ll have to start all over again.

Dwight Glover

October 11th, 2012
11:44 am

Great and well researched article with a very reasonable approach. Key question is can we get beyond the political rhetoric and actually implement something so pragmatic. I’m encouraged by the judicial reform Gov. Deal sponsored earlier in the year to handle drug violations so maybe he will use the same approach here. Not sure if I can say that about his other policies but let’s be hopefull.

Hillbilly D

October 11th, 2012
11:47 am

My Grandpa always told me if you were looking for justice, court was the last place you need to go. I firmly believe that. The court system is a mess that mainly benefits lawyers and judges, in my opinion. Go sit in a courtroom for a day and observe, if you’ve never been in one. It’s an eye-opener.

barking frog

October 11th, 2012
11:49 am

I have always been against
caps on jury awards. I saw
the careers of two highly
skilled cardiologists ended
by a jury that awarded a
patient judgment based
on sympathy. That is not
right.

Tommy Maddox

October 11th, 2012
12:04 pm

Kyle – the “big awards at the top” are usually won by Plaintiffs who will never enjoy the fruits of life post verdict i.e. paying the cost for a ventilator for the next twelve years etc.
Most seriously injured folks would prefer to have a normal healthy life rather than a ruined life with a pocket full of money. They can’t get ‘the reckoning” so a money verdict is all that is available to them.

Besides, how can you legislate a different civil procedure when a Plaintiff’s spinal cord is severed by a surgeon as opposed to being severed by a runaway tractor-trailer?

carlosgvv

October 11th, 2012
12:08 pm

Kyle, would the members of this administrative court be non political? Who would appoint them? How could we be certain they would have no political agenda?

barking frog

October 11th, 2012
12:19 pm

Tommy Maddox
I think some of the legislation may already be
in place as shown by court
reduction of jury awards.
Insurance company premiums also need to
be examined.

Hillbilly D

October 11th, 2012
12:31 pm

Insurance company premiums also need to be examined.

I’ve always thought that the way insurance operates, sort of goes against the principles of business. In a normal transaction, you give a person money for a product or service. Their goal is for you to be satisfied with the transaction, so you’ll be a repeat customer. Generally, they’ll try to deliver.

Life insurance works fairly well because you have a finite amount (payout) and a defined event (death). Not a lot to argue about, you die, somebody gets “x” amount of dollars that was agreed to by both parties.

Other forms of insurance, you pay in advance. When it comes time to deliver the product to you, they immediately start trying to renege as much as they possibly can and they already have their money, so they have little incentive not to operate that way. It’ll always be a mess, in my opinion.

Finn McCool (The System isn't Broken; It's Fixed)

October 11th, 2012
12:39 pm

Finn McCool (The System isn't Broken; It's Fixed)

October 11th, 2012
12:40 pm

I like my torts with pepperoni and mushrooms.

I Report (-: You Whine )-: mmm, mmmm, mmmmm! Just sayin...

October 11th, 2012
12:47 pm

Can the dummycrats sue o’biden for malpractice tomorrow after the debate?

Easy E

October 11th, 2012
1:05 pm

Kyle,

Very well written article. I don’t necessarily agree with most of your posts but you present a very reasonable argument here. I like the workers compensation-style administrative court. It levels the playing field for both the insurance companies and the lawyers alike.

This is why I believe the ObamaCare (while well intentioned) did not do enough to address the root cause of runaway medical costs. Tort reform, is one of the reasons (IMO) and figuring out a way to ensure that it is not abused is one way to reduce outrageous medical costs when compared to similar procedures in other countries.

Trial Attorney

October 11th, 2012
1:28 pm

I suggest you take a look at the source of the funding for the Emory Professor’s study. It was paid for by Patients for Fair Compensation an advocacy group who stands to benefit the most from this “reform.” And by the way, the workers’ compensation system is a no-fault system, meaning if you have an on-the-job injury, you can recover. That is not what is being advocated for with these reforms. At the very least, people should have the choice whether to pursue an administrative remedy or instead allow a jury of their peers to decide their case. After all, the Seventh Amendment guarantees folks the right to a jury trial.

Kyle Wingfield

October 11th, 2012
1:57 pm

Trial Attorney: Do you dispute the 3% figure? If not, do you think that’s an acceptable level of access to justice? If not, how would you propose increasing it?

The angel Moroni

October 11th, 2012
2:02 pm

Well, we’ve proven that tort reform doesn’t lower medical costs (which was the primary point used in selling it to the public – remember? doctors charged so much because they had to pay so much malpractice insurance? uh, apparently the cost savings didn’t get passed to the patients), so now let’s just say it increases “justice” for patients. That ought to work for a year or two and then we can just think of another slogan.

Anderson Cooper

October 11th, 2012
2:12 pm

Hey Kyle, could all this assist me if I want to lash out at Frosted Mini Wheats?

Trial Attorney

October 11th, 2012
2:17 pm

Mr. Wingfield: I have no information one way or the other to dispute the 3% figure, and for the purposes of our discussion, I’ll assume it is correct. Certainly the overwhelming majority of potential medical malpractice clients who consult with my firm are often turned away, either because they have difficult liability facts, limited damages (e.g., they made a good recovery), or both. Were we to take those cases, it could potentially bankrupt our firm because we put up all of the case expenses, which do often run in the tens of thousands of dollars. Our clients are often lower- and middle-class folks who cannot afford to pay these expenses up-front. Certainly I have no quarrel with creating an additional avenue to providing justice to injured victims who would not otherwise be able to obtain justice through the traditional civil justice system (i.e., State and Superior courts). But I do take issue with forcing injured folks to forego their day in a court of law with a jury of their peers, a right enshrined in the Constitution, and instead force them to pursue justice in a pseudo-court presided over by bureaucrats. Why can’t the existing system remain in place, while we also create a second system for the remaining 97% of legitimate claims?

Kyle Wingfield

October 11th, 2012
2:24 pm

Trial Attorney: Because, as I wrote a year ago (in the piece linked in the above column), the existing system costs us a fortune in unnecessary medical expense.

Kyle Wingfield

October 11th, 2012
2:28 pm

Make that “last year” sted “a year ago.” It was December 2011.

@@

October 11th, 2012
2:39 pm

At the time, I found the “workers compensation-style court” a logical approach. Still do.

I don’t see much of a difference between defensive medicine and preventative medicine. Both put money into the medical profession’s pocket.

I recently had to undergo a yearly physical for insurance purposes. I’d stumped my little toe the day before. It was blue and swollen. Upon arrival, the doctor asks…”Anything new you wanna talk about?”

Jokingly I said…”Can you fix my broken toe?”

She looked and said “There’s not much we can do for a broken toe.”

“Just kidding”, I said.

Wanting to send me for this test and that (no apparent reason) other than money, I replied…

1) “What’s the test for?”

2) “What do you hope to find as a result?”

After telling her I didn’t think they were necessary, she went back to the toe…

“We should have an x-ray done on that toe.”

Me again…”Why, when you’ve already said there’s nothing you can do about it?”

Her again…”Infection.”

Me…”I’ve had two infections in my life. I’m bettin’ the toe won’t be my third.”

It pays/saves to be a pro-active patient. There’s not enough of us out there.

Trial Attorney

October 11th, 2012
2:43 pm

Mr. Wingfield: Is there some reason why the only source you continue to cite is Patients for Fair Compensation/Jackson Healthcare? Have you even considered exploring the other side of this issue critically? WIth all due respect to Mr. Jackson, he and his group are nothing more than the fox guarding the hen house. A March 2012 white paper from the Center for Progressive Reform found that the “defensive medicine argument” is a myth. According to the research paper cited above, the actual cost of defending malpractice suits and paying injured victims is less than 0.3 percent of health care spending, and reducing the cost of malpractice insurance, presumably by imposing caps on malpractice awards so as to shield insurance companies from paying awards to victims, would have a negligible effect on overall costs. In reality, the only ones who gain from the reforms that you are advocating for are the insurance companies. The last time I checked, they aren’t in the business of paying out on claims.

getalife

October 11th, 2012
2:44 pm

tort reform is a scam to take away accountability.

401k’s are up, the market is up, unemployment is falling and housing is improving.

We are definitely on the right track and I will reward our President with my vote for that.

Friend of Justice

October 11th, 2012
2:51 pm

The existing system costs us a fortune in unnecessary medical expense? Where did you get that from Mr. Wingfield? That statement implies that you think that lawsuits are the problem. Please Please Please show me the figures that directly link lawsuits to the problem of runaway medical costs. Where are the numbers behind the 3% statement? I don’t suspect I will see those figures, because you have none. What you have is speculation and conjecture. Speculation and conjecture being sold as legitimate journalism is a shame. Show me the numbers to support these positions. Moreover, why aren’t you questioning the study you quoted? Patients for Fair Compensations bankrolled the study. Who are Patients for Fair Compensation? Well here is who they aren’t “Patients!” not a single one. They are a group started by the owner of Jackson Healthcare — one of the largest Healthcare Companies in the country. Sound impartial Kyle? Next time tell the folks all the facts, not just the ones your friends want you to push.

Finn McCool (The System isn't Broken; It's Fixed)

October 11th, 2012
2:57 pm

Is Kyle shilling for the insurance companies?

southpaw

October 11th, 2012
3:02 pm

@@

October 11th, 2012
3:07 pm

It’s obvious some folks resent Kyle’s support for a proposal that puts a cap on their earning potential.

“Fiender” benders?

schnirt

Earnestly

October 11th, 2012
3:12 pm

Tort reform…really…again…really? Some ideas (like tort reform) never die. That’s how you know they are all about making big money. The one thing that you can count on from the Georgia legislature is that they are dedicated to making money for their big business pimp daddies.

Pizzaman

October 11th, 2012
3:31 pm

Maybe a lawyer can explain it in legalese but not common American. I don’t understand how limiting how much I could get will increase my access to legal help. Not Logical, Captain!

Different subject: Just how is the Administration preventing or trying to prevent Military personnel from voting. Heard the same thing about the Dems in ‘04. Voting regulations are the province of the States. So how, even better why, is the Administration involved.

And remember: Vote Early, Vote Often, avoid Republican voter ID, vote absentee!

Aquagirl

October 11th, 2012
3:35 pm

I wrote about one alternative almost a year ago: a move to a workers compensation-style administrative court.

They tried that with vaccines and it’s overrun by Bachmann-like loons. I don’t care how many courts you set up you can’t cure stupid, and stupid people will always cost everyone else big bucks.

Different Trial Attorney

October 11th, 2012
4:44 pm

One thing ignored as to why the attorneys do not take some cases / the cause of the high cost to take them, is the laws already in place to protect doctors.
In Georgia, in order to even file a complaint of medical malpractice, you must get an affidavit from one in the same medical field (or close to it) to attest to exactly what the defendant did that was negligent. No affidavit = lawsuit gets thrown out right away. No doctor will give an affidavit for free: they charge $$$ per hour, to review all of the records (that cost $$ to get).
Also, since in Georgia, doctors must consent to any settlement, med mal cases are much more likely to go to trial and then regular tort cases / car wrecks.
Finally, Kyle, I recall your Dec. 2011 piece on Mr. Jackson’s “no fault” system, that first required a finding of negligence (i.e. fault) before any compensation was paid or due. It was bad policy then, and a blatently misleading label / idea (not by you, but the author), and is today.

Jon

October 11th, 2012
4:45 pm

Because there’s no legal industry around Work Comp…have you looked at the side of a bus lately?

fair and balanced

October 11th, 2012
5:00 pm

As an attorney, I agree with everything you are saying. State Bar now has a trial lawyer as its president, it will be interesting since she has said she intends to propose legislation for plaintiffs. Caused quite a commotion.

Doug B

October 12th, 2012
8:54 am

The problems you name won’t be cured by tort reform, Kyle. Those problems will remain the same, but with damages capped, there will be no incentive for a lawyer to ever take a malpractice case. Access to legal representation would get worse, not better.