Go to navigation Go to content

Tort Reform Side Effects Worse Than Large Medical Malpractice Payouts

While huge medical malpractice payouts get headlines and sometimes sound unreasonably high, they do not raise the overall costs of healthcare, according to a Bloomberg opinion piece. In fact, the lack of any cap on pain-and-suffering awards, which is the case in New York – for now – actually create more safer hospitals, author Steve Cohen wrote.

Anesthesiologists are a leading example of how malpractice suits can improve care. In the 1970s and ’80s, anesthesiologists were paying some of the highest malpractice premiums in medicine. After years of high awards and bad publicity, the American Society of Anesthesiologists conducted an investigation into patients’ injuries. In response, they revised procedures and redesigned machines. Ten years later, the mortality rate in anesthesiology matters plummeted and insurance rates fell to among the lowest in the nation.

Another specialty that could benefit from internal review rather than tort reform, according to the author, is obstetrics and gynecology. While doctors have generally resisted sweeping reform, NewYork-Presbyterian Hospital conducted a huge study on so-called sentinel events – unforeseen problems that cause death or serious injury to patients. After implementing changes, there were no deaths in 2008 or 2009 from unforeseen problems, down from 1.04 per 1,000 deliveries in 2000. Medical malpractice awards also fell to $250,000 annually from $50 million.

Another example of tort reform that has backfired is shortening the Statute of Limitations on medical malpractice claims. The author states that this causes more doctors to be sued rather than less. In order to “stop the clock and preserve their rights,” plaintiffs sue every doctor imaginable and worry about dropping the innocent doctors from the suit later. Of course this creates unnecessary litigation and anxiety for physicians.

The author stated that without tort reform, huge verdicts like the $130 million cerebral palsy case in Port Jefferson, NY that I discussed earlier this year will remain. But the unintended consequences of tort reform, such as Lavern Wilkerson not being able to sue for her doctor’s failure to diagnose a cancer that formed more than 2.5 years before she discovered it, outweigh those costs.


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer