Tort reforms have been repeatedly argued in many medical malpractice cases. Tort reforms are regulations that make it difficult for average people to sue medical malpractitioners that assault, harm, or injure them (Doroshow, 2010). These laws were formulated by insurance companies, manufacturers of dangerous products, tobacco manufacturers, medical professionals, and other industries to help avert responsibility for their malice. The tort reform movement has enormous backings in the form of massive cash deposits into conservative “think-tanks”, polling and lobbying firms, and public relations organizations. They hurt consumers, patients, and other average individuals and are dangerous for the general population.
Most cases of malpractice presume negligence of the medical practitioner. To establish a case of medical negligence, the plaintiff must prove:
• The existence of a duty that is owed by the medical professional to the plaintiff, for example, doctor-patient relationships.
• The applicable medical care standard and the medical practitioner’s actions that have resulted in a deviation from the set standard, which is a breach of duty to the patient.
• A causal relationship between the medical professional’s deviation from the set level of health care and the harm to the patient
• Injury to the patient.
Negligence can be defined as the failure to exercise the kind of care expected of a prudent professional. In tort reforms, negligence applies to damages caused as a result of carelessness but not intentional harm.
Malpractice in healthcare is a known as ‘professional’ negligence and occurs when licensed medical professionals fail to provide services as outlined in the standards set by governing bodies, consequently causing harm to patients.
Finding a healthcare professional negligent involves proving that his or her behavior was unacceptable according to the established healthcare standards. For the litigant, establishing these standards may require presenting expert testimony of another medical professional, qualified in the same medicine area as the defendant. He or she must indicate what standard of care is required by competent and qualified healthcare practitioners. Then, the litigant must show that the defendant fell short of these standards.
A healthcare professional may be held responsible for negligence in medication prescription or medical devices if he or she did not read the instruction manual or prescribed wrong dosage or medication that ended up causing injury to the patient. Sometimes pharmaceutical companies are liable for the damage if they fail to warn about potential side effects and dangers of using drugs (Studdert, Mello, & Brennan, 2004).
Medical professionals are usually not the only individuals to blame for injuries caused to the patient. If they can prove that the injury was caused by negligent acts of the patient, then they can formulate a strong and valid defence against a malpractice lawsuit. Negligence on the part of the patient may involve failure to disclose medical history records or information, mixing prescriptions against the MD’s counsel, or failure to follow prescriptions. The main argument in favor of healthcare malpractice reforms is that most of the lawsuits are meritless and simultaneously costly to defend. The consumers incur the costs, and this ends up elevating health care costs for all people. Doctor Paul states that being sued is “an extremely distasteful experience” and to avoid such a scenario, most doctors practice defensive medicine which involves making the patient go through as many tests as possible, for example, CAT scans and MRIs, to conclude a pre-diagnosis for a particular ailment condition (Kenney, 2009).
AMA statistics indicate that 60% of liability lawsuits against medical professionals end up being dropped, dismissed, or withdrawn. Approximately 60% of these cases cost an average of $22,000 each to defend and 90% of the physicians involved are found not guilty of negligence (Studdert et al., 2006). Malpractice liability costs are responsible for the high healthcare costs, which continue increasing with each subsequent year. The opponents of medical malpractice reforms have often argued that healthcare insurance companies, instead of the malpractice claims, are responsible for the high costs of medical care. They claim that medical malpractice lawsuits are in reality underreported and under-litigated.
References
Doroshow, J. (2010). Medical Malpractice Tort Reform - We Are Already Suffering and Don’t Need More. The Huffington Post. Retrieved 22 May 2016, from http://www.huffingtonpost.com/joanne-doroshow/medical-malpractice-tort_b_350573.html
Kenney, C. (2009). 'Fixing Health Care Requires Tort Reform'. NPR.org. Retrieved 22 May 2016, from http://www.npr.org/sections/money/2009/08/fixing_health_care_requires_to.html
Studdert, D. M., Mello, M. M., & Brennan, T. A. (2004). Medical malpractice. New England Journal of Medicine, 350(3).
Studdert, D. M., Mello, M. M., Gawande, A. A., Gandhi, T. K., Kachalia, A., Yoon, C., & Brennan, T. A. (2006). Claims, errors, and compensation payments in medical malpractice litigation. New England Journal of Medicine, 354(19), 2024-2033.
