Forbes on Tort Reform

mcleanlawpc July 23, 2015

I just came across this fantastic article, published by Forbes in March (and before that by The New York Observer). The article displays the myths and misrepresentations the insurance industry spewed to the American public leading to the tort reform movement.

“The greatest trick the Devil ever pulled was convincing the world he didn’t exist.”

Verbal (Kevin Spacey) in The Usual Suspects

The second greatest trick may be the insurance industry’s success in getting more than half the states to implement “tort reform.” That achievement was based on the promise that restricting victims’ ability to bring medical malpractice suits would improve healthcare and reduce its cost. Those myths have now been completely dispelled.

The article goes on to discuss actual studies and statistics (instead of hyperbolic anecdotes), including this one by the New England Journal of Medicine, exposing the insurance industry’s (convenient) solution to a problem (that is, lawsuit abuse) that never really existed. Cohen writes:

This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent. Perhaps the most telling fact is that the Department of Justice found that the median med mal award in jury-decided cases was $400,000. In bench trials, where the judge also serves as the jury, the median award was $631,000.

The Forbes article doesn’t mention the crowning battle cry of the Tort Reform movement: Stella and her infamous cup of hot coffee from McDonald’s. Of course, like much of the “facts” cited in support of tort reform, perception is far different from reality. You can read the real story here.

We here at McLeanLaw PC certainly agree with Forbes’ conclusion:

[J]ust one more tool the tort reformers created to keep victims from seeking justice. … It is time for legislators to recognize that they were hoodwinked, dismantle the so-called reforms, and begin to look for real solutions to make patients safer.

I’ve blogged about the absurdity of Texas’ medical malpractice reforms often. It’s all interesting thought and debate until it hits close to home. I’m currently representing a grieving husband who’s wife died when her physician (actually, his assistant) prescribed her medication which was well-known to cause death when taken with another prescription (of which the clinic had long known she was taking). She died in her sleep a few hours after filling the new prescription. It breaks my heart to tell him that the Texas Legislature has declared that his wife’s life is only worth $250,000 (at most).

Perhaps one day the American Public will finally pull the insurance industry’s wool back from over their eyes and realize we’ve been lied to.

Mark McLean