While the political debate over medical negligence tends to focus on doctors’ insurance premiums or health care costs, one very important factor is often overlooked: the injured patients.

The injuries patients suffer from preventable medical errors are very real. Some are easily calculated, such as additional medical costs and lost wages, while others are less so, such as quality of life and pain and suffering. The problem with many medical negligence reforms is that they do not seek to prevent medical errors, but merely to shift the burden of these damages to the injured patients themselves.

Caps on non-economic damages are one such “reform” that do nothing to reform medical negligence at all. Non-economic damages compensate patients for very real injuries—such as the loss of a limb or sight, the loss of mobility, the loss of fertility, excruciating pain, or severe disfigurement, or even the loss of a child or a spouse. In the name of a “medical negligence crisis” many states have moved to cap these damages. The effect is often to render many medical negligence cases too expensive to bring to trial, especially for women, children, the elderly and the disabled—those who may not have suffered substantial economic loss. University of Buffalo law professor Lucinda Finley found that such groups received restitution far below average levels, and had a far harder time even getting to court because the expenses of a case often outweighed any potential award. She concluded, “caps benefit insurance companies by increasing their profits, while producing no benefit for doctors, and causing a detriment to injured people, especially women and the elderly.”i The “reform” takes away the restitution, but does nothing to prevent the injuries.

Civil Justice and Patient Safety
Such reforms also take away a powerful deterrent to medical negligence. The civil justice system not only provides patients with their constitutional right to seek restitution for their injuries in a court of law; it also encourages patient safety systems that help prevent negligence before it occurs. Hospitals, such as Connecticut’s Bridgeport Hospital, have reformed dangerous practices because of litigation. In some cases, entire medical fields have been transformed.

More Tort Reform Equals Worse Health Care
Medical negligence lawsuits serve an important role in promoting public health and patient safety. Evidence suggests that the lessening of accountability that comes from reforms such as medical negligence caps can have a detrimental effect on patient safety and health care quality. A study from the American College of Emergency Physicians found that safety improves when injured patients can hold negligent hospitals or physicians accountable. States with aggressive legislation limiting patient access to the legal system are also the states that score lowest in patient safety. Overall, the 10 states doctors claim have the “best liability environment” (more tort reform) have a D+ score for patient safety (just two points above fail). In contrast, the 10 states doctors claim have the “worst liability environment” have a B- for patient safety, above the C+ national average. The 25 states with “best liability environments” all rank below the national average for patient safety.

Similarly, data collected from the non-partisan Commonwealth Fund show health care in states that cap damages in medical negligence cases tends to be of lower quality than health care in states that do not.ii Patients in states that do not cap damages have better access to health care and are more likely to be covered by health insurance than patients living in states with caps on damages. The aforementioned study from Tulane University also found that states with more accountability experienced lower rates of mortality.iii Analysis by Professors David Hyman and Charles Silver also found that insulating providers from liability was detrimental to patient safety, and concluded, “The widely held belief that fear of malpractice liability impedes efforts to improve the reliability of health care delivery systems is unfounded.”iv Professors Jonathan Klick and Thomas Stratmann similarly noted medical negligence reforms resulted in lower health care quality and increased infant mortality.v

The Bridgeport Hospital Experience
In the late 1990’s, hospital administrators at Bridgeport Hospital in Bridgeport, Connecticut, were aware of a rash of infections caused by unsanitary conditions. Attempts to identify possible causes and solutions were ignored, partly for financial reasons. Eventually the staph outbreak resulted in a series of deaths. Lawsuits filed as a result uncovered a range of dangerous practices in the hospital, such as doctors not washing their hands before surgery and wearing non-sterile clothes in the operating room.

As a result, Bridgeport Hospital embarked on a $30 million renovation. The hospital upgraded its air filtration system and hand washing stations, and made changes to staff practices, such as a prohibition on doctors wearing scrubs home. These improvements drastically cut infection rates, from 22 percent of cardiac surgery patients to nearly zero.

i Lucinda M. Finley, Hidden Victims of Tort Reform: Women, Children and the Elderly, 53 Emory L.J. 1263, Summer 2004.
ii Patient Justice: Patients are Better Off in States Without Barriers to Justice, Texas Watch, January 2008.
iii Praveen Dhankhar, M. Mahmud Khan, Shalini Bagga, supra note 74.
iv David Hyman, Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution, University of Texas Public Law & Legal Theory, March 28, 2004.
v Jonathan Klick, Thomas Stratmann, Does Medical Malpractice Reform Help States Retain Physicians and Does it Matter, December 15, 2005, available at SSRN: