Definitive Study Finds that ‘Tort Reform’ Doesn’t Work

Posted June 27, 2012 in Medical Malpractice by

A new study by professors at prestigious law schools around the country found that so-called “tort reform” — which chisels away at consumer legal rights — does not reduce health care costs.

Insurance companies and powerful business cabals relentlessly lobby state and federal legislators to restrict medical malpractice lawsuits by adopting “tort reform” legislation—which prevents juries from awarding injured patients large amounts of compensation. Tort reform laws:

  • Limit your access to get into court.
  • Restrict the types of claims you can assert once you’re in court.
  • Cap the recoveries you can obtain in court.


Tort reform advocates have pushed laws through state legislatures by convincing legislators and voters that limiting jury awards will drive down medical costs, or at least slow the rate of increase. But the newly-released study by a group of law professors across the country pokes holes in this argument, finding that health care costs continued to rise without change after Texas imposed a severe cap on non-economic damage awards in 2003.

The study provides a wake-up call for voters who might prefer to keep their full rights to access the court system, including their right to full compensation.


The Argument for Tort Reform

Professor Charles Silver

The argument that tort reform will reduce health care costs goes like this: Once the damages available in medical malpractice lawsuits are capped, doctors will worry less about being sued, and their incentive to practice “defensive medicine” will decrease; the resulting reduction in the number of tests and procedures they order will lower medical costs for the consumer, making health care more affordable. Tort “reformers” also claim that doctors will flock to states that protect them from “runaway jury awards” for medical malpractice by imposing damages caps.

“Tort reform is a partisan political issue,” says Professor Charles Silver, the Endowed Chair in Civil Procedure at the University of Texas School of Law, one of the co-authors of the study. “It does one thing reliably: it reduces the value of medical malpractice claims.”

Lawyers who represent people injured by negligent doctors and hospitals, led by the American Association for Justice, push in the other direction, advocating for their clients’ rights to recover the most money for all of their injuries, including their mental pain and suffering.

Silver has been studying the litigation system in Texas and the effects of tort reform for almost a decade. He says there was never a litigation crisis to begin with. “Our first study just looked at how the liability system was functioning,” he says. “There were all these assertions about skyrocketing costs and doctors being sued more often, so we did a simple study and found there wasn’t a whole lot going on. The system was stable.”


Tort Reform Does Not Attract Doctors


The Legal War

Against Consumers

Read our investigation of tort reform, which includes

Professor Silver’s research group has a second study underway that will further deflate the claims of tort reform advocates, who say that the number of doctors increases in jurisdictions that cap medical malpractice awards.

The future study looks at the effect of the 2003 reforms on the number of doctors practicing in Texas. “There are claims that doctors are swarming to Texas because it’s now very liability-friendly for them, but again, we find nothing,” he says. In fact, a comparison of the medical profession’s growth in Texas pre- and post-reform actually shows a slower growth rate since 2003.

“Tort reformers make two claims that can’t both be true at same time,” Silver points out. “On the one hand they say costs will fall because doctors will practice less defensive medicine, but on the other hand, they claim that there are many more doctors in Texas now because of tort reform.” But if more doctors (if they’re actually there, he says) are busy treating more patients and thus doing more procedures, wouldn’t costs go up? “They can’t have it both ways,” he says.


Texas Leads the Way

Texans like to say their state is its own country, but the results of these studies show that voters from around the whole United States have something to learn from the Lone Star State.

Texas has been the poster child for tort reformers at the national level, and the failure of their claims spell trouble for tort reform’s advocates in other states and in Congress. “At the national level, we’ve been in this gridlock as long as one party is in a position to block legislation in the Senate,” Silver notes. The House has enacted all kinds of federal tort reform, but it dies in the Democratically-controlled Senate, where the plaintiffs’ bar still has some sway.

If there’s little chance for change in his home state, why does Silver keep at this? “My job as an educator is to provide accurate factual information,” he explains. “If people want to, they can use it to decide what polices they want to support.”

If you’ve been injured by a health care provider and are concerned about your rights to access the courts and get a full and fair trial, contact a plaintiff’s lawyer who specializes in medical malpractice on

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