Key Consumer Issues - Tort Reform

Tort Reform: Limiting Your Ability to Sue

1. Caps on non-economic damages. When filing a medical malpractice lawsuit, you may be asking for both economic and non-economic damages. Economic damages include things like your medical bills, loss of income, and other actual expenses. Non-economic damages are things that are more difficult to put a number on such as pain and suffering, inconvenience, and permanent disability.

The Georgia tort reform law limits the amount a patient can collect for non-economic damages. In most instances, the patient can only collect a total of $350,000 regardless of how negligent the doctor is.  If more than one facility is involved, the most a victim of malpractice can collect is $700,000. 

To see how your Senator/Representative voted on this legislation, click here.

2. Limited liability for emergency care providers. If you get emergency medical care in a hospital emergency room or in an obstetrical unit or surgical suite immediately after getting treated/evaluated in an ER, the medical providers who treat you can't be held liable for wrongdoing unless you can prove they were grossly negligent. That means if the doctor who treated you was negligent but wasn't extremely negligent, you can't sue.

3. You may have to pay the defendant's attorney's fees. If a doctor you're suing offers to settle and you don't accept the offer, and at the end of the case, you don't win a judgment that's at least 25% more than his offer, you may have to pay his attorney's fees and court costs.

4. A hospital may not be held responsible for the negligence of certain medical providers practicing there. You may be surprised to know that all medical providers who work at a hospital are not necessarily employees of the hospital. Sometimes, they are independent contractors. If a provider treating you commits malpractice, and he is an employee of the hospital where you were treated, you may be able to sue both the doctor and the hospital. However, if he is an independent contractor, you can only sue him, not the hospital.

It's tempting to believe arguments for tort reform that appear to address issues like rising health care costs and access to care. Those who want to limit what malpractice victims are entitled to will tell you that patient lawsuits resulting in multi-million dollar jury awards have made medical malpractice insurance so expensive that doctors can no longer afford it and are having to close their doors.

Don't be misled.  For an excellent discussion that provides clear data disproving many of the traditional arguments for tort reform, click here.

Tort reformers seem to suggest that patients and their lawyers file frivolous lawsuits against doctors, hoping to win huge sums of money. This argument doesn't make sense for three reasons, which the insurance industry doesn't like to talk about: (1) there are legal consequences for both lawyers and their clients if they file a frivolous lawsuit; (2) medical malpractice cases are extremely time consuming and expensive to prosecute. Lawyers usually take them on a contingency basis, which means they foot the bill for the expenses of the case (getting medical records, hiring medical experts, etc.) and only get paid if they win; and (3) before you can file a medical malpractice action, a doctor has to have looked at the facts and must agree that the treatment fell below the standard of care owed. 
 

By putting caps on medical malpractice awards, tort reformers are saying that, no matter how bad a mistake a doctor makes or how negligent he is, and regardless of the immediate and long-term consequences to the patient, the patient deserves only a limited amount of compensation for his suffering. But, how can we make such an assumption without even knowing the specific facts of each patient's case? Why not let a jury decide what an appropriate limit is after hearing all the facts and arguments on a case by case basis? Is it really fair to suggest that the lifelong suffering of a family whose child is paralyzed because of a doctor's negligence can only be worth $350,000?  What if the injured person is the sole wage-earner in the family? 

Of course, we all want to trust our medical providers and most of them are trustworthy, talented, conscientious, and committed. We know they have a difficult job to do, and we don't expect them to be perfect or to be able to cure every ill. But, we do expect them to give us medical care that meets accepted standards within the medical profession. There is no excuse for failing to take necessary care and precautions or for cutting corners. Doctors and hospitals who do these things need to be held accountable for their actions; otherwise, there is no incentive to do better or consequences when the minimum standard of care is not provided.