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Tort Reform: The Intended Consequence

Every few years we ramp up the rhetoric on stopping “junk lawsuits” and implementing medical liability reform to stop the rise of medical costs brought about by doctors who feel compelled to order a patient every medical test imaginable to cover themselves in the event the patient sues them for malpractice. You can expect to hear the same rallying cry again with the 2016 election cycle already underway. Here is what you will not likely hear from any candidates or current elected officials.

Tort Reform and Medical Malpractice Reform has not stopped the rising costs of medical case. It has not even curbed the rising costs of medical care, and it never will, although it sure sounds good from the political pulpit.  In the years since tort and medical liability reform statutes were implemented by several states and growing pattern appeared as stated in a recent article on

[The last bubble to burst was that because doctors are fearful of getting sued, they practice “defensive medicine, prescribing unnecessary and costly tests and procedures. That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.”]

[The latest blockbuster revelation looked at the impact of tort reform restrictions implemented in three states over 10 years ago. Texas, Georgia, and South Carolina passed legislation that made it virtually impossible to sue doctors or hospitals for emergency room treatment. The study examined 3.8 million emergency department visits at 1166 hospitals between 1996 and 2012.

Why ER visits? Because the researchers knew that “emergency physicians practice in an information-poor, high-risk, technology-rich environment.” It was a setting, they noted, that “might lend to defensive practice and magnify the costs.”

What they found was that doctors in the tort-reform states – who were virtually immune to malpractice suits – prescribed just as many MRIs and CAT scans as doctors in the control states. Removing the risk of getting sued didn’t change doctor behavior.]

So if tort reform legislation has not curbed or stopped the out of control costs of medical care in South Carolina what is the explanation. Could it be that the point of “defensive practices” is indeed to magnify the costs of medical care? Could it be that the point of magnifying costs is to increase overall profitability? Could it be that the most effective way to ensure profitability is granting de facto immunity to medical providers from all errors or deviations from the medical standards or care?  Is that the real consequence of tort and medical liability reform? The Intended Consequence.

Is there any profession which deserves immunity from their actions? Should a police officer be immune from negligence? An attorney? Your accountant? Your homebuilder? Make no mistake about it, creating walls to accountability through our civil justice system does nothing to improve the quality of medical care (or any service) you receive, and it will not get any less expensive either.