Spreading faster than a measles outbreak, there exists an epidemic more contagious than the frivolous lawsuit fervor. It surfaces in political elections and hides in state legislative bodies across the nation. And Arizona is no exception. It's the clamor for tort reform.
Without the tort reform for medical malpractice cases, doctors bear the brunt of our current system. But moving the burden onto the patient is not just unwise -- it's downright dangerous.
When Bush made it part of his campaign last fall, Americans raised a quick eyebrow and then immersed themselves in other issues. Now it seems everyone wants to follow in the steps of California's tort reform, whose caps on malpractice awards for pain and suffering date back to 1957.
But while the nationwide issue is caught up in Congress, states are addressing malpractice issues on their own terms. The Arizona Senate decided last month to revisit the issue next session, earmarking it for the 2006 ballot. That hasn't stopped the debate, though.
In particular, the Arizona Litigation Reform Summit last Friday brought interesting ideas to the front. One idea included moving to a contract system in which patients signed a waiver form -- waiving their right to sue -- whenever treated. It's quite extreme.
In our sue-happy society, guarding doctors against predatory and all too often frivolous lawsuits makes sense. Lawsuits brought against doctors don't always have merit. And in some cases, it's not the merit that matters anyhow. A good lawyer can argue and win any case in our system.
By accepting cases on a contingency fee basis, lawyers only get paid if their clients wins, and they're paid a percentage of the judgment. The higher the judgment, the higher the payoff for the lawyer. And without much to lose up front, our system basically encourages people to try their luck at the game. "Sue and win big," the advertisement seems to read.
So, it's no wonder the threat of litigation has doctors overwhelmed. It's believed these threats of litigation and the high costs involved in defending oneself from malpractice lawsuits accounts for high insurance premiums.
Doctors complain there's little reason to stay in high-risk areas of practice. Some even note they've moved to lower-risk areas of practice as a result of the costs and fears. This certainly needs a solution.
Many believe tort reform in malpractice cases may reduce malpractice insurance premiums. In the case of waivers, people couldn't sue and thus couldn't contribute to the rise in such premiums.
But even in looking at the less extreme and more common action of capping judgments to push down the number of absurdly high awards given, there are serious problems.
Sure, we may help doctors. But in creating these reformations we also create a tradeoff between the security and liberties of doctors and the security of their patients.
Litigation is a powerful tool. When it comes to human lives, mistakes in hospitals aren't equivalent to a broken fender. They put people's lives on the line. By suing a doctor after malpractice occurs, it sends a message to the doctor and to the industry: Errors in medicine will not be tolerated. The risks they pose are too high.
And when it comes to the individual doctor targeted -- the higher the judgment, the more weight it carries. A size equivalent to a small proportion of a doctor's income is easy to ignore. They let the insurance company pay it, or pay it themselves and continue on with their lives.
But based on income -- the higher the award, the more likely it demands notice. A large judgment is harder to ignore and will then remind doctors there are serious consequences for errors.
By taking away the right to sue, the public is left with little defense. Even reducing award judgments through caps impairs the public. Knowing the awards reduction, lawyers may not take as many individuals on contingency fees. People who cannot afford to sue but have valid malpractice complaints may not sue where they would in our current system. That translates to fewer consequences for medical errors.
It's not even certain whether malpractice premiums would go down as a result of tort reform. The Texas insurance commissioner's office stated in 2004 they would not go down. While the source of these high premiums and theory behind the tort reform solution is debatable, the affects on the public are not.
Rosie Cisneros is a political science and journalism junior. Reach her at rosie.cisneros@asu.edu.
