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Illuminating Tort Reform; Is It Living Up to Its Promises

A recent study in the New England Journal of Medicine shines a spotlight on the failures of tort reform. Tort reform became a national trend in the mid-1980s when small businesses, doctors and other groups found themselves facing dramatic increases in insurance costs and limited policy availability. Proponents claimed that vast improvements would be seen in healthcare by restricting people’s rights to sue and limiting the compensation they could obtain from wrongdoers. Claiming that doctors were aggressively ordering unnecessary and expensive procedures and tests only to avoid lawsuits, tort reform would supposedly influence doctors’ behavior. Presumably, released from their burden of fear, doctors would reduce patient testing. However, research has proven otherwise. The study published in the New England Journal of Medicine explored the effectiveness of tort reform legislation in three states and found that in fact, tort reform did not impact doctor’s behavior in reducing tests or procedures.

In the study, a panel of doctors examined the records of close to 4 million patient visits in over one thousand emergency rooms for fourteen years. They concluded that “legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates.” The three states, Georgia, Texas, and South Carolina, had changed the definition of negligence from ordinary to gross negligence, which forced plaintiffs to prove that doctors consciously disregarded the need to exercise reasonable care in treating patients. Despite this reform, which made it nearly impossible to find providers negligent, the frequency and number of doctors’ prescriptions for procedures and tests remained unaltered.Clearly, tort reform does not act, as promised, to modify the decisions of physicians when treating patients. As noted by the panel of physicians who conducted the study, “Our study addresses a very specific question: Do physicians change their behavior in response to changes in the legal environment? We provide strong evidence that, for emergency physicians at least, the answer is no. ”

1) Daniel A. Waxman, M.D., Ph.D., The Effect of Malpractice Reform on Emergency Department Care, N Engl J Med; 371: 1518-1525 (October 16, 2014)

2) Daniel A. Waxman, M.D., Ph.D., N Engl J Med (January 8, 2015)