Are the Savings from Tort Reform Imaginary? (Yes!)

By Peter DePaolis

Tort reform, which is often marketed as the solution to frivolous malpractice lawsuits, has been a topic of hot debate in America for decades. In reality, tort reform threatens victims of accidents and injuries while providing no benefit to anyone but the insurance industry. Further, frivolous lawsuits are thrown out by judges early in the case. The idea that frivolous lawsuits clog up the judicial system is simply untrue.

Tort reform harms victims of accidents and malpractice by denying them the full compensation they need to recover. Instead of a judge or jury considering the specific facts of a claim (such as how a person came to be injured and the extent of their injuries,) the legislature sets a legal limit to how much any person can receive. This also deprives Americans of their 7th Amendment right to a civil trial decided by jury, a founding principle of this nation. Once a jury renders a verdict, why should that award be pre-emptively reduced for reasons that have nothing to do with the case?

Another facet of this debate is the elusive notion of “defensive medicine” and whether this places additional burdens and costs on healthcare providers. Defensive medicine, or defensive medical decision making, is when diagnostic tests or treatments are prescribed, not to protect the patient, but to protect the physician against potential malpractice lawsuits.

Busting the Myth that Defensive Medicine Drives Up the Costs of Healthcare

A new study published in the Journal of the American Medical Association (AMA) measured the burden placed on healthcare providers by such defensive practices and concluded that defensive medicine accounts for less than 3 percent of all healthcare spending in the United States. Therefore, another tort reform myth that lawsuits drive up the costs of healthcare has been busted.

In fact, “There seems little reason to pursue [malpractice reform] as a means to… reduce health care spending in the United States,” according to Healthcare Analyst Aaron Carroll.

The study found that many defensive medicine procedures are often prescribed for legitimate diagnostic or therapeutic reasons, in addition to fears of potential litigation. Tort reform would only eliminate the orders made solely to avoid future lawsuits, which is an even smaller fraction of that 3 percent.

Therefore, which problem is worse? Less than 3 percent of healthcare spending where a physician may order a test to ensure they are not exposed to medical malpractice, or genuinely injured victims of malpractice, who cannot recover because the courthouse has been shut and locked for no reason.

It is time to dispel the myths surrounding tort reform once and for all. We must see tort reform for what it really is: sacrificing American citizens’ financial and physical health to fill the wallets of insurance providers. Tell us your thoughts on Facebook or Twitter.

Did You Know?: Medical malpractice claims the lives of 44,000 to 98,000 Americans each year, according to Public Citizen.

Koonz, McKenney, Johnson & DePaolis L.L.P.

Maryland, Washington, D.C. and Virginia Injury Attorneys


About the Author
Peter DePaolis joined the firm in 1980 and has since represented a large number of individuals involved in automobile collisions, truck accidents, bus crashes, defective products, and medical malpractice cases. A significant portion of Mr. DePaolis’ practice is devoted to working on behalf of people suffering from asbestosis, mesothelioma, and other asbestos-related cancers. He has led his firm’s fight against the asbestos industry and has recovered over $30 million in damages for asbestos victims and their families.