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The Deterrent Effect of Medical Malpractice Laws

I always wondered about the deterrent effect of medical malpractice laws. In other words, if you pass laws which limit responsibility of tortfeasors do you embolden them to commit torts? Does the fact that they have limited responsibility make people less careful?

This is often discussed in the medical malpractice area. Pro-tort reform entities seek to cap damages.  Groups who advocate for victims rights, like the Illinois Trial Lawyers Association and the American Association for Justice, cite studies from people like Tom Baker, author of the Medical Malpractice Myth,which indicate that the great majority of people who were injured by medical providers’ negligence do not file suit. They discuss the huge numbers of medical errors compared with the paucity of actual suits.  (Tom Baker was a guest on my radio show, Let’s Talk Law.  Also, I should probably mention I am a member of American Association for Justice and on the Board of Managers for the Illinois Trial Lawyers Association).

Zenon Zabinski and Benard S. Black have written a paper about this issue. The papers entitled “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform.”  The paper analyzes cases from states that enacted damage caps for medical malpractice claims. Those states are Florida, Georgia, Illinois, South Carolina, and Texas. The study notes that in Illinois and Georgia invalidated the caps. However, Zabinski and Black studied information that predated the invalidation of the caps so the information should not effective the study.

Sabinski and Black discussed the Texas reforms. Texas enacted reforms in 2003 which had a profound impact on claims and payouts. The number of large claims fell 58% from 2003 to 2010 and the mean payout decreased 41%. This totaled a decrease of about 75% of total payouts. According to Sabinski and Black payouts per person in Texas went from $25.39 to $5.57.

Bernard Black was a guest on my radio show, Let’s Talk Law.  He said he picked Patient Safety Indicators to measure the error rate because Patient Safety Indicators are things that should not happen absent negligence. For example, one of the Patient Safety Indicators deals with situations where a doctor leaves a foreign item in patient, like a sponge. Obviously, that should not happen, absent someone’s negligence. So, his study follows Patient Safety Indicators as a method by which he can determine whether negligence rates go up following tort reform. Black indicated they checked millions of patient safety indicators throughout the country.

Damage caps increase the incidence of medical malpractice, according to the authors.   Sabinski and Black found an average rise in 10 to 15% of Patient Safety Indicators (PSI) in states that enacted caps on damages.  The percentage changes of various PSIs in Texas range from 8% to 88%, with the average 18.5%. The authors found evidence for general deterioration in patient safety following medical malpractice reform. It found similar rates in South Carolina at 19 ½ percent.

The authors also concluded that after tort reform, PSI rates gradually increase, consistent with hospitals gradually relaxing (or doing less to reinforce) patient safety standards. Prof. Black said he believes that is very difficult for clinics and hospitals to maintain decent safety levels. When they get sued occasionally, it makes them more interested in maintaining the safety levels. He believes that accounts for the increase in negligence following caps on damages.

The authors conclude that this is consistent with classic tort law deterrent theory. In other words, the fear of lawsuits makes people behave better.

If you have a medical malpractice problem contact us at Ackerman Law Office.



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