Notes on Tort Reform

10,000 doctors in TN

9 OBs in Memphis to serve all of the TennCare .

Tort reform…

Access problem to doctors because doctors leave practice because they can’t afford insurance. Some folks paying $120,000 to $200,000 a year in insurance.

OBs’ insurance rates have gone up 90%.

70% of doctors have been sued.

We export most of the doctors we graduate from UT. is the doctors’ website.

Hmmm…. Well, lots to think about.  More about this later.

16 thoughts on “Notes on Tort Reform

  1. Yeah this problem is only getting worse. I think MS has several cities with no OB practicing in them. Women have to drive several hours for a doctor. The problem is (from what I have heard at least) doctors are blamed for any complication that occurs during birth. Parents sue and insurance has to pay. As you said, a lot of doctors are just going into other less risky fields. My wife’s uncle has a family medical practice in MS. He believes that alot of the increased cost in medical care is due to doctors covering their asses and ordering extra tests that may not be truly warranted. They order them to avoid any lawsuits. Something is gonna have to give to make things workable, but at the same time, we don’t want doctors to get away with gross negligence either.

  2. “The problem is (from what I have heard at least) doctors are blamed for any complication that occurs during birth.”

    Back in the old days, midwives used to get accused of witchcraft on this basis. I’m sure the insurance is burdensome, but it beats the heck out of the threat of being burned or hanged. I’m thinking here of the discussion last week on Katherine’s blog about changes in healthcare over the centuries….

  3. This is not something I’ve studied up on as much as I should, but I wonder to what extent the problem being largely in OB/GYN is related to the way we do birth now – the unnecessary interventions and taking decision-making power away from women. If you don’t tell me you’re going to cut me or what you’re injecting, and have me hooked up to a billion things and tell me I can’t move or eat or videotape because of possible liability, and basically take away my agency in the process, I might be a lot more likely to blame you if something goes wrong than if we’re partners in the birth and you only do what is really necessary. I’d also be interested in the rates of malpractice suits in OB/GYN versus other specialties.

  4. I wonder to what extent the problem being largely in OB/GYN is related to the way we do birth now – the unnecessary interventions and taking decision-making power away from women.

    Rachel, I think your right in that it’s a self-perpetuating thing. They don’t want to get sued so they overmechanise the process which causes a patient perception of the almighty doctor and then leads to more desire to sue, etc.

    But I have no doubt that the greed of personal injury attorneys is a major component to the problem.

    When people talk about “tort reform” they mostly mean things like putting a statute of limitations on tortious wrongs. They want to make it so you can’t sue your doctor for something he did wrong 3 or 4 years ago, even if your new doctor has just discovered the problem in a recent exam. This is the type of tort reform that makes my skin crawl, because it takes away a fundamental right of the citizen to justice.

    The type of tort reform I favour–and the type which will never pass–would be a cap on attorneys’ fees. Most personal injury attorneys take those cases on contingency. They get paid a percentage of the winnings. So they naturally push for larger winnings, as the bigger the reward, the higher their pay. However, if attorneys’ fees were capped, the rewards would not be falsely escalated.

    Seeing as how we have legislatures populated so heavily with attorneys, this type of thing will NEVER pass.

  5. Kethe you should read this before you post. You should also look to who funds your sources before you cite them with such authority. The GAO study you reference did find gaps in care in certain areas of the affected states, just not as much as the AMA claims.

    The fact is that malpractice insurance rises at a rate far faster than inflation, even the already inflated rise in medical costs generally. The fact is the number of c-sections in this country has been rising rapidly with no correlation in the number of injured babies born. The fact is that OBGYN residents are no longer being trained in the use of forceps during labor for fear of malpractice suits. The fact is that most (nearly 90%) of all malpractice suits are won by defendants (either at trial or otherwise) but that this comes only after months and sometimes years of litigation with its concommittent costs. The fact is there is really nothing to disincentivize the filing of frivilous claims against doctors or hospitals. The fact is because of this lack of a disincentive, plaintiff’s attorneys are very often willing to “roll the dice” against doctors only tangentially involved in a patient’s care in the hope of hitting a jackpot. (

    The fact is that in states with caps on malpractice awards (not just on attorneys fees) doctors pay much less for malpractice coverage (the insurance rates in California or Wisconsin are far lower than in Illinois). The fact is that medicine is not exact and there are no guaranteed outcomes and even with the best care people can have bad results.

    I am not sure what TN particular take is on this subject or what brand of reform is being advanced, but it is about time that some sense is put back into the legal system.


  6. I didn’t learn as much about tort reform as I should have from talking to the dude, but I was alarmed about what he was saying, about towns in Tennessee with one surgeon or the nine OB/GYNs who are supposed to deliver all the TennCare babies in Memphis.

    What he was advocating for was a limit on the pain and suffering awards, if I was understanding right–the kinds of punitive damages. He was saying that doctors will settle what they know are bogus suits just because fighting them is so expensive and takes so long. And that doctors are leaving the state to go practice places where the insurance premiums aren’t so high.

    Kleinheider and I were talking about it afterwards, too, and he kind of articulated what I thought, which is that, on the one hand, we clearly have to do something because we’re losing doctors who aren’t being replaced. On the other hand, though, if a doctor really is a monster, don’t people deserve some kind of recourse?

  7. That is exactly the problem B. We want and need to get rid of the really bad doctors before they screw up anyone else’s life. But we can’t do it at the expense of good doctors. I think doctors themselves need to do a better job of policing their own. Medical review boards need to be set up (if they are not already) and other doctors should be judging the wrongful actions of doctors. This is how engineering is policed. Engineering boards suspend and/or revoke the licenses of engineers who fail to practice quality engineering. If you are disciplined in one state, you are required to notify the other states you are licensed in and will most likely be disciplined there as well. I have not heard if doctors have a similar system, but I think it could be worked out.

  8. Every state has a licensing bureau that is supposed to oversee the medical professionals, whether doctors or nurses, dentists or chiropracters. However, for the most part they are toothless and it is nearly impossible to permanently revoke a persons license, usually the only thing that really gets people in trouble are issues involving sex, and sometimes drugs – but even then the review boards are very lenient with those in any type of recovery program. The AMA is a voluntary organization and more doctors don’t belong then do, so the AMA really doesnt have much policing authority. Some of the specialist boards, the American College of Neurology and Psychiatry, for instance, is very active in policing the activities of those it certifies, but you don’t have to be a board certified neurologist to practice neurology.

    I know that caps are an extramarket force and we are supposed to let the market determine pricing structure based upon a cost/benefit analysis of risk, but the problem with a solely market driven system in this instance is that the legal system is an extra-market influence that skews this analysis. Caps work, if for no other reason than they provide insurers with some stability in the potential damages they may have to pay out – and really insurers are just there to manage risk and it is much more difficult to manage risk in an unstable environment.


  9. So if LE’s analysis of the AMA and other boards is correct, then I would think it would be in the doctors’ best interest to encourage a strong self policing organization be developed. The intention would be to limit liability by eliminating doctors that are unfit for practice.

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  11. The problem for docs is more than insurance, it is just one of the many losses of income suffered by a medical practice.
    1) sadly, caps do not necessarily mean that any savings will be passed on to the physicians or their practices as most states do not require that in their legislation. So, the insurer keeps the difference.
    2) if we compare statistics between years adding in the cost of inflation, etc, that does not take into account that salaries have not changed at the same percent as inflation since 1992 for physicians.
    3) tort reform does not change the system which rewards claims based on bad outcomes. Most claims are for bad outcomes, which sadly, happens in medicine, this is life and is merely a population percentage, not a reflection of the practice of medicine. We should only reward claims to those where malpractice occurred. These being cases where the standard of medicine was not met or the physician missappropriately treated a patient.
    4) Each state has numerous self regulating boards for medicine. Usually the same people giving the liscences. Also, loss of liscence occurs with malpractice, not the number of claims or number of settlements/verdicts/etc. It is a different body of evidence, and usually what is missing during trials.
    5) The AMA is not a regulating body, it is a lobbyist organization. Many MDs are not a part now because they feel the AMA is not looking out for their interests anymore but more for the interests of the AMA.
    6) The legislative climate in TN does not necessarily look any more dire than many other states, and it will not be malpractice insurance that does in physician practices. I loose more money per year trying to collect from HMO’s and private insurance than I’ll pay in 10 years of malpractice. Add to that the decreased reimbursement, increased rents, increased employee costs, and increased paperwork…..

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