Tort Law Reform Research Paper

Decent Essays
Is Tort Law Reform the Solution?
Because the practice of defensive medicine is driven primarily by the threat of legal liability, researchers have proposed direct or indirect tort law reforms as the solution. With caps on non-economic damages and “collateral source offsets”, direct reforms seek to limit the cost of malpractice litigation for providers (Kessler, 2011, p. 96). Indirect reforms seek to alleviate malpractice pressure through other means, including contingency fee limitations, periodic payment requirements against future damages, joint and several liability reforms, and provisions for patients’ compensation funds (Kessler, 2011). The potential of such reforms to curtail defensive medicine is based on the assumption that reduced
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Under a no-blame, administrative model, the Patients’ Compensation System (PCS) compensates patients for avoidable injuries without suing health care providers (Patients for Fair Compensation, 2012). Starting with patient advocates who help injured patients navigate the PCS, the system includes several steps to ensure that each case is thoroughly researched. Patient eligibility for and amount of compensation are determined impartially, and improvements in practices and treatment approaches are based on back-end data tracking and the identification of causal factors. The PCS aims to uphold the highest standards of judgement in each case by relying on a review panel of physicians, nurses, and other certified medical professionals who possess no knowledge of the case. The inclusion of an administrative law judge further ensures that the law is applied fairly and the process is followed to the letter (Patients for Fair Compensation, 2012). The goal is to seek justice for injured patients, regardless of traditional barriers to access, and to protect health care providers from meritless…show more content…
Active bills in Florida, Georgia, Maine, and Tennessee during the 2016 legislative session provoked fierce debates among various stakeholders. The two main arguments focus on the potential for costs to rise uncontrollably under the PCS, and its feasibility to replace the current malpractice system (Forray, Fleming, & Wunder, 2014; Forray & Wunder, 2017).
Because the PCS would not function within the legal system, its substitution for the malpractice liability system may deprive patients and providers of their right to court system access. The PCS’ proposed exclusivity therefore raises constitutionality issues (Forray, Fleming, & Wunder, 2014). On the other hand, as long as the malpractice liability system exists, injured patients will still find their way to court, thus perpetuating provider incentives to practice
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