Medical Malpractice

The Health Care and Tort Reform Debate

By David Goguen, J.D., University of San Francisco School of Law
Tort reform efforts have yet to yield legislation at the federal level, but a number of states have passed laws that make it a little harder for potential plaintiffs to file a medical malpractice lawsuit.

Medical malpractice cases have been at the forefront of the nationwide "tort reform" debate pretty much since its inception. In this article, we’ll cover the basics of tort reform, and discuss some of the reform measures that a number of states have put into place specifically for medical malpractice lawsuits.

What is "Tort Reform"?

"Tort reform" has come to serve as a shorthand answer to the longstanding, complex question of what to do about a legal system that may (or may not, depending on who you ask):

  • make it too easy for plaintiffs to file frivolous lawsuits without much (or without enough) in the way of consequences
  • encourage (or at least allow) civil court juries to hand excessive monetary awards to plaintiffs
  • drive up the costs of insurance for everyone, since most tort-related court awards (and the settlements that are paid out in order to avoid trial) are paid by insurance companies (so, the argument goes, along with greater financial exposure for insurers of all kinds come higher premiums for people and businesses seeking insurance coverage), and
  • play a part in the perceived rise in the practice of "defensive medicine" by health care professionals who are subjecting patients to numerous diagnostic tests and procedures in order to fend off malpractice lawsuits, while in turn driving up health care costs for everyone else.

As background, "tort" is another word for "personal injury," or a civil wrong suffered by one person owing to the fault of another. Car accidents and slip and fall accidents are considered "torts" in the eyes of the law, and so are medical malpractice incidents where a health care provider’s negligence or carelessness brings harm to a patient.

There has been no passage of uniform tort reform legislation at the federal level. But when it comes to medical malpractice lawsuits in particular, over the course of the last few decades (and earlier), most states have passed laws that place certain procedural hoops in the path of potential plaintiffs. One objective of these reform-minded laws is to separate valid medical malpractice lawsuits from those that may be meritless (or even frivolous) right at the outset of the process.

Procedural Safeguards in Medical Malpractice Lawsuits

Many states require a medical malpractice plaintiff to provide additional evidence of the validity of their case, in addition to the allegations contained in the initial complaint. A number of states require the plaintiff to file an "affidavit of merit" or similar document in which a qualified medical expert swears under oath that he or she has reviewed the plaintiff's case and believes that the health care provider being sued provided sub-standard care that caused harm to the plaintiff. And most states that require the filing of an affidavit of merit have also laid out specific qualifications for the medical expert whose opinion is stated in the document.

Let’s look at a few examples of these state laws.

In California, anyone wishing to file a medical malpractice lawsuit must give the defendant health care provider at least 90 days’ prior notice before filing the case. (More: Medical Malpractice Lawsuit Requirements in California.)

In Massachusetts, a medical malpractice plaintiff must make an "offer of proof" to a three-person tribunal. (More: Medical Malpractice Lawsuit Requirements in Massachusetts.)

In Nevada, most medical experts who are relied on in a medical malpractice lawsuit must practice medicine (or have experience practicing medicine) in an area that is "substantially similar" to the one the defendant health care provider was engaged in at the time the alleged malpractice was committed. (More: Medical Malpractice Lawsuit Requirements in Nevada.)

In Texas, soon after the health care provider files a formal response to a plaintiff's medical malpractice lawsuit, the plaintiff must prepare and file an "expert report" laying out much of the basis for his or her case. (More: Medical Malpractice Lawsuit Requirements in Texas.)

Getting More Information, and Getting Help

These are just a few examples of state laws that could impact a medical malpractice lawsuit. An experienced medical malpractice attorney will be very familiar with the various laws and procedural rules in your state that could have an impact on your case. Learn more about Selecting the Right Medical Malpractice Lawyer.

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