The Politics of Tort: Legal Fairness vs. Health Access Unit 8- Tort Reform Kaplan University Dr. Thomason

Institute of Medicine Report (IOM) To Err Is Human Building a Safer Health System Report that medical errors are among the top reasons for leading cause of death in the U.S.

Journal of American Medical Association Prescription Drugs - Leading Killer in USA According to information we have received, a statistical study of hospital deaths in the U.S. conducted at the University of Toronto revealed that pharmaceutical drugs kill more people every year than are killed in traffic accidents. The study is said to show that more than two million American hospitalized patients suffered a serious adverse drug reaction (ADR) within the 12-month period of the study and, of these, over 100,000 died as a result. The researchers found that over 75 per cent of these ADRs were dose-dependent, which suggests they were due to the inherent toxicity of the drugs rather than to allergic reactions. The data did not include fatal reactions caused by accidental overdoses or errors in administration of the drugs. If these had been included, it is estimated that another 100,000 deaths would be added to the total every year. The researchers concluded that ADRs are now the fourth leading cause of death in the United States after heart disease, cancer, and stroke. Source: Jason, et al. (Lazarou et al), Incidence of Adverse Drug Reactions in Hospitalized Patients, Journal of the American Medical Association (JAMA), Vol April 15, 1998, pp Also Bates, David W., Drugs and Adverse Drug Reactions: How Worried Should We Be? JAMA, Vol April 15, 1998, pp

Nursing Home Quality Some of the same questions have been raised about nursing homes in the United States. Centers for Medicare and Medicaid Services (CMS) created a quality reporting system for nursing homes: ection/Questions/SearchCriteriaNEW.asp?version=d efault&browser=Firefox|3.5|WinXP&language=Englis h&defaultstatus=0&pagelist=Home&CookiesEnabled Status=True ection/Questions/SearchCriteriaNEW.asp?version=d efault&browser=Firefox|3.5|WinXP&language=Englis h&defaultstatus=0&pagelist=Home&CookiesEnabled Status=True

Healthcare Lawsuits State laws in many parts of the country allow for strong and swift legal tort measures involving medical malpractice and cases involving abuse and neglect of the elderly and children. Many of the lawsuits involved legitimate claims made by plaintiffs. Some are described as “frivolous”

The Politics of Tort Reform Jury awards in medical cases often lead the country in size. Most of the time, plaintiffs and defendants will settle prior to reaching a jury. Most of those settlements are not disclosed. But we do know that the fear of the large jury verdicts prompts many providers to settle, even in cases that they may have a legitimate defense.

Trial Lawyers (Plaintiff Bar) Can you give me the arguments from their perspective on why the system involving tort actions is working.

Healthcare Defendants Argument Can you provide some of the arguments on this side of the battle?

Texas Tort Reform In 2003, Texas went through a major revision in our tort laws. I worked on this revision and can give you my thoughts on the battle, the winners, the losers, and the advances and shortcomings of tort reform.

Non-Profit Liability Premiums in Texas

Tort Reform Argument Problem: Litigation costs are creating an access to care barrier for aging Texans. Facts: The average long-term care legal claim in Texas is the second highest in the country, behind Florida, at almost $400,000 per claim. (AON Study, February 2001) In 2000, Texas had an average frequency of 1.3 claims per facility. This number is the second highest frequency of claims in the country. (AON Study, February 2001) There are currently three insurers carrying liability insurance (including the state’s JUA program). State survey deficiencies cited against non-profit facilities are seventeen percent lower than the national non-profit average. Texas non-profit facilities are 45 percent lower than the national for-profit deficiency average. On average, liability insurance among non-profit facilities increased over 1000 percent since Average rates have increased from an annual premium $327 per bed in 1998 to almost $3,000 per bed in The average 2001 cost for liability insurance among TAHSA nursing facilities is $228,332. For 2002, the average cost of liability insurance is $469,700 and rising.

Legislative Solutions in Texas Legislative Solutions: Set a $250,000 non-economic damage cap in jury verdicts against providers. (Article 4590i, 11.02(a); 11.04) Require the felonious conduct exception to exemplary damages to be a proven felony in a criminal court of law. (Civil Practices and Remedies Code (A,B) Reduce exemplary damages to a cap of $250,000 plus two times economic damages (Civil Practices and Remedies Code (b) Limit contingency fees that personal injury lawyers may collect, setting up a sliding scale for fees according to the amount of the recovery, judgment or settlement. Include non-profit long term care facilities under the charitable immunities exemption.

Physicians, Hospitals, Nursing Homes, Insurance- Formed an Alliance Texas Alliance for Patient Access Goal was to pass and defend tort reform. Pass and defend a constitutional amendment in Texas that would support a cap on the damages in tort cases.

The Big Question How do you effectively balance: – Access to the courthouse – Access to quality healthcare. – Without compromising either? – Is it possible?