LMS President’s Message, July 2019
What About Torts?
By Charles L. Papp, MD
One trigger that can make just about any doctor’s heart find its way down to their stomach is a certified letter from the court giving notice of a malpractice lawsuit. Once we get over the gut punch, we look up the patient’s record and try to figure out why the patient feels we were negligent. We then start cursing the legal system in general and the tort system in particular.
Doctors work hard, spend long hours, and put up with a lot in the pursuit of our patients’ well-being. How can this be happening to me? It is insulting and frustrating. Some of us probably wish the whole system were completely abolished. We call out for tort reform, yet it seems nothing gets done. Why is it that this task seems so hard? The answers can be found in the tort system itself, the ongoing debate as to whether tort reform actually helps, and the specifics of the Kentucky constitution and legal system.
At the risk of seeming like a traitor to the cause, I must say lawyers, like any professionals, are for the most part hard-working, honest, decent people. Several are my close personal friends. On the other hand, just as in medicine, there are a few bad apples, and this brings up the need for tort law. We do not enjoy being accused of malpractice. However, if our child or spouse were severely injured by one of these “bad apples” and we were looking at huge lifetime medical costs, our sentiment would change about malpractice and we may choose to sue. In this case we want the best lawyer possible. This is where tort law enters. According to the dictionary, torts include all negligence cases as well as intentional wrongs which result in harm. Tort law is felt to provide restitution to the person harmed and to deter negligent acts. Tort law serves a purpose in our society. The question is whether the tort system could be changed for the better.
Texas provides a good study case. In 2003, the state of Texas passed a bill giving Texas comprehensive tort reform. The same year Texas voters approved Proposition 12, an amendment to the Texas Constitution that authorized the state legislature to cap noneconomic damages in health care liability cases. Noneconomic damages were capped at $250,00. If health care institutions were also found liable, stacked noneconomic damages were capped at $750,000. There was no cap on economic damages. The Texas Medical Association is now celebrating fifteen years of tort reform. Texas in 2017 has nearly doubled the number of new medical licenses since tort reform went into effect. The number of new doctors has grown more than twice as fast as the population between 2008 and 2017. This is especially meaningful since the state had been suffering from a shortage of physicians. In addition, the number of medical liability lawsuits has plummeted. Malpractice costs, which were spiking before 2003, have dropped 46% according to the Texas Alliance for Patient Access. Opponents of the reform argue that health care costs have not decreased. They also state that it has prevented some of the poor and disenfranchised from getting heard in the courts. Their major concern is whether legitimate cases are not being heard.
This brings us to Kentucky. We have a constitution that has been updated three times. The last time was in 1891. In the 1891 version, there were no caps placed on noneconomic damages in tort cases. To make a change requires a constitutional amendment. This is difficult, and there are two ways to do it. The first requires that 60% of both houses approve the proposed amendment. It then goes on the general ballot and the citizens need to approve it with a simple majority. The other way is for the majority of both chambers of the legislature to agree to place the question before the state’s voters. In the next session of the legislature, a majority of the members again needs to agree to place it before the voters. Finally, it is placed before the voters. The amendment needs a majority, and the number of voters voting yes needs to equal one-fourth of the number of qualified voters. Clearly it is not easy to get done, yet there have been several amendments in the last 20 years. It can be done.
Another important fact about Kentucky government is that the Kentucky Supreme Court justices are elected, not appointed. We recently had a setback in tort reform when the state Supreme Court overturned the medical review panel law on grounds that it “delayed justice.” KMA President Bruce Scott’s article on this issue set out well the strained logic the court used to overturn this law. If the law did anything, as he pointed out, it sped up justice by encouraging settlements. He also pointed out that members of the legal profession lament that the number of trials happening in the civil court system has dwindled. We need to pay attention and vote intelligently when Supreme Court justices come up for election. Find out about the candidates and support the ones that you feel will deliver rulings that will benefit the state. One can start out by checking if the KMA has insights.
We need proper tort law and injured individuals need redress, but the system needs to be fair, just, and efficient. It has been over a hundred years since the last Kentucky State Constitution was updated. Certainly, that is long enough to give tort law a good review. The US Chamber of Commerce Study on Tort Reform puts tort costs at $4.48 billion dollars. That’s 2.3% of Kentucky’s gross domestic product. Of that money, only a little over half actually goes to the injured party. The rest is taken up in fees and costs. Certainly, there is room for improvement.