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Michael Hill | Mar 12, 2015

Recent Data Shows That Tort Reform Does Not Work

Tort Reform has largely been promoted by two promises: limitations imposed on injured peoples’ ability to recover monetary compensation for the harm and loss they suffered would (1) result in lower healthcare costs and (2) increase the supply of physicians in the community. Recent data shows that neither of these promises has been fulfilled.

The first promise claims that based on a fear of being sued for medical malpractice, physicians routinely perform unnecessary diagnostic tests and procedures, which is known as the practice of “defensive medicine.” The performance of these unnecessary tests and procedures needlessly inflates the costs of healthcare. By eliminating the risk of being sued for medical malpractice, doctors no longer need to practice “defensive medicine” and the cost of healthcare will go down. The second primary basis for tort reform has been that physicians are leaving the industry for fear of being sued. Thus, once measures were instituted to make it more difficult for injured patients to access the civil justice system, the supply of physicians would increase.

Based on these and many similar promises, more than half of the States in the U.S. have enacted some form of tort reform legislation. These have included measures such as smaller time periods in which to bring a law suit, strict limitations on the amount injured people can recover as monetary compensation – known as “damage caps” – heightened burdens of proof such as a requirement that the wrongdoer’s conduct was not only negligent but willful, reckless, intentional, or malicious, and requirements that medical malpractice lawsuits be screened by physicians for “merit” before being filed. Recent data confirms, however, that the promises of reduced healthcare costs and increased physician supply based on tort reform are simply not true.

Most recently, The New England Journal of Medicine published a study performed by a team of public health experts and five physicians who evaluated the effect of tort reforms measures in Texas, South Carolina, and Georgia. The tort reform measures in Texas, South Carolina, and Georgia were designed specifically to insulate emergency room physicians from liability for medical malpractice. The researchers concluded, however, that these tort reform measures did nothing to reduce the number of expensive tests and procedures being performed by doctors in those states. The study examined 3.8 million emergency department visits at 1166 hospitals between 1996 and 2012. The researched found that emergency room physicians in Texas, South Carolina, and Georgia – where emergency room physicians were virtually insulated from malpractice lawsuits – performed just as many costly procedures and tests as physicians in states where tort reform had not been enacted. See Daniel A. Waxman, M.D., et al, The Effect of Malpractice Reform on Emergency Department Care, N Engl J Med 2014; 371:1518-1525 October 16, 2014 DOI: 10.1056/NEJMsa1313308, 

In another paper focused on physician supply – i.e., the notion that physicians were leaving the industry or specific geographic regions based on the risk of malpractice lawsuits – David Hyman and other researchers at the University of Illinois concluded that tort reform measures do not increase the supply of physicians. See Hyman David, et al, Does tort reform affect physician supply? Evidence from TexasNorthwestern Law & Econ Research Paper 12-11, Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-12, U of Texas Law, Law and Econ Research Paper No. 225. February 14, 2014, 

The researchers examined the claim that states that enact tort reform measures become “magnets” for doctors by focusing on Texas, where some of the most extreme tort reform measures in the country were enacted in 2003, including a $250,000 cap on monetary compensation for everything except lost wages and medical bills. The claims made by Texas legislators and other promoters of medical liability reform has been that there was a mass exodus of physicians from Texas before tort reform was enacted and an overall increase in supply of physicians since tort reform has become the law. The researchers were unable to find any evidence for either claim. They determined that, “[p]hysician supply was not measurably stunted prior to reform, and it did not measurably improve after reform. This is true for all patient care physicians in Texas [including] high-malpractice-risk specialties, primary care physicians, and rural physicians.” Id.

While tort reform does restrict the ability of injured people to recover monetary compensation for the harms and losses that were negligently caused by a physician, it does so without fulfilling the promises of more affordable healthcare or access to physicians.