Trends in American Justice Polls, focus groups and studies by Common Good and leading academics confirm that, because of legal fear, doctors, teachers, ministers and others no longer feel free to act on their best judgment. See our Harris Poll on legal fear, Common Good's health care and education briefing books, and other health care research and education research.
A healthy system of justice, Justice Benjamin Cardozo suggested, makes people feel comfortable doing what's right and nervous doing what's wrong. Today in America people feel nervous about doing almost anything in the public realm.
Civil litigation has increased significantly over the past 30 years. The amounts claimed and the verdicts awarded have also increased substantially. What people are willing to sue over also has expanded, although that is more difficult to measure. The data available on litigation trends is incomplete in important respects, including on the types of claims brought, the amounts of settlements, and the number of claims that are threatened and then settled. Existing data includes the following highlights:
Civil Litigation Has Increased Dramatically in Recent Years.
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All civil claims increased 12% between 1993-2002.
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Tort claims (a subset of civil claims) declined 5% since 1993 because traffic claims (which make up the bulk of tort claims) declined 14% during that period. The decline in traffic claims is attributable to the rise of no-fault insurance and other reforms designed to reduce the volume of those claims.
(Examining the Work of State Courts, 2003, National Center for State Courts)
- Between 1975 and 2002, all tort claims increased a total of 38% (including the 9% decrease since 1992).
(Examining the Work of State Courts, 2002, National Center for State Courts)
The Cost of Our Litigation Nation Continues to Rise.
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Tort costs increased by a total of 30% in 2001-2002--the largest two-year increase since 1986-1987. Costs increased by another 5.4% in 2003.
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As of 2003, U.S. tort costs accounted for 2.23% of GDP, the highest cost-to-GDP ratio since 1990.
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When viewed as a method of compensating injured parties, the U.S. tort system has become increasingly inefficient, returning less than 50 cents on the dollar to the people it is designed to help and returning only 22 cents on the dollar to compensate for actual economic loss (as compared to 25 cents on the dollar in 1985).
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While the cost of the U.S. tort system has increased a hundred-fold over the last 50 years, the GDP has grown by a factor of only 37, and population has grown by a factor of less than two.
("U.S. Tort Costs: 2004 Update" is an update of previous studies published by Tillinghast in 1985, 1992, 1995, 2002 and 2003.)
The Number and Cost of Medical Malpractice Claims Has Grown.
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Medical malpractice filings have increased 18% since 1992. 2002 saw the highest number of malpractice filings in the past ten years. (National Center for State Courts)
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The average malpractice claim payment more than doubled from 1989 to 2001, while the median malpractice payment more than tripled over the same period. (Physicians Insurance Association of America)
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Medical malpractice costs totaled nearly $27 billion in 2003, or $91 per person, compared with $5 per person in 1975. (Tillinghast)
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The increase in medical malpractice costs continues to outpace increases in overall U.S. tort costs, rising an average of 11.8% per year versus an increase of 9.2% per year in all other tort costs, keeping pace with out of control medical inflation. (Tillinghast)
(Examining the Work of State Courts, 2003, National Center for State Courts)
(Smarr, Lawrence E. Physicians Insurance Association of America, Testimony to a Joint Meeting of the U.S. Senate Judiciary Committee and U.S. Senate Health, Education, Labor, and Pensions Committee, Feb. 11, 2003, p. 15)
("U.S. Tort Costs: 2004 Update" is an update of previous studies published by Tillinghast in 1985, 1992, 1995, 2002 and 2003.)
Defensive Medicine Exists And Is Costly.
In a Harris Interactive study of doctors commissioned by Common Good, 91% of respondents said they had noticed other doctors ordering more tests than would have been necessary based solely on professional judgment, and 79% reported doing so themselves.
In a survey of Pennsylvania physicians:
- 93 percent reported practicing defensive medicine in order to avoid a lawsuit;
- 92 percent reported ordering unneeded tests and diagnostic procedures and making unnecessary referrals;
- 42 percent said "they had taken steps to restrict their practice in the previous 3 years, including eliminating procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious."
(Studdert, David M., et al., "Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment," Journal of the American Medical Association, Vol. 293, No. 21, June 1, 2005.)
The most widely cited study on defensive medicine estimates that defensive medicine may account for up to $100 billion annually in excessive costs.
(Daniel Kessler and Mark McClellan, "Do Doctors Practice Defensive Medicine?" Quarterly Journal of Economics, Vol. 111, Issue 2, May, 1996.)
A recent General Accountability Office study rightly points out that it is difficult to accurately and completely quantify defensive medicine, and reviews the extensive list of studies examining the subject and reaching varying results.
(GAO, "Medical Malpractice: Implications of Rising Premiums on Access to Health Care," August 2003)
The Current Medical Liability System Leads to a Culture of Secrecy, Driving Medical Errors Underground.
This is widely recognized by scholars and policy analysts, including the Institute of Medicine:
"Liability concerns discourage the surfacing of errors and communications about how to correct them. ... Patient safety is also hindered through the liability system and the threat of malpractice, which discourages the disclosure of errors. The discoverability of data under legal proceedings encourages silence about errors committed or observed. Most errors and safety issues go undetected and unreported, both externally, and within health care organizations."
(To Err is Human: Building A Safer Health Care System, Institute of Medicine, 2000)
Rising Size and Frequency of Claims is the Primary Driver of Increasing Malpractice Insurance Costs.
"Multiple factors have contributed to the recent increases in medical malpractice premium rates. First, since 1998, the greatest contributor to increased premium rates in the seven states we analyzed appeared to be increased losses for insurers on paid medical malpractice claims."
(GAO, "Medical Malpractice: Implications of Rising Premiums on Access to Health Care," August 2003)
Court Intervention in Matters of School Discipline Has Undermined the Moral Authority of Public Schools and Led to a Decline in Civility.
Civility in schools is on the decline, due in part to the increased role of the courts in school disciplinary matters. Between 1991 and 1997, problems with student tardiness, absenteeism, class-cutting, drug use, drug sales on school grounds, and verbal abuse of teachers increased.
|
Offense |
Percent of Principals Reporting that the Offense is a Serious or Moderate Problem |
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1990-91 |
1996-97 |
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Student Tardiness |
50 |
67 |
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Tobacco Use |
40 |
48 |
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Student Absenteeism/Class Cutting |
39 |
52 |
|
Student Alcohol Use |
37 |
20 |
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Student Drug Use |
20 |
36 |
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Drug Sales on School Grounds |
2 |
10 |
|
Verbal Abuse of Teachers |
13 |
20 |
(Order in the Classroom: Violence, Discipline, and Student Achievement, Educational Testing Service, 1998)
In Judging School Discipline (Harvard 2003), Professor Richard Arum provides extensive documentation of the effects that school discipline litigation has had on school environments and student achievement.
The Virginia and Florida Limited No-Fault Regimes Have Not Reduced Litigation.
Opponents of Common Good's proposal for a special medical court say that such courts have not reduced litigation, citing the Virginia and Florida no-fault system for certain medical injuries.
The Florida and Virginia systems are not medical courts, however--they are no-fault administrative systems, designed to compensate families in a subset of cases where children are born with severe neurological defects, regardless of medical error or fault.
Judges in those systems do not issue rulings on standards of care. The systems are not designed to deter bad care or create incentives for good care. They are designed to compensate.
The Florida and Virginia systems have failed to achieve great success because they were not designed to eliminate tort claims. People can still choose to sue. Litigation has been extensive and has undermined the effectiveness of the systems.
Click here to see our first healthcare briefing book on this issue and other past reforms at p. 21.
The Volunteer Protection Act of 1997 Could Be Called the Lawyer Full Employment Act.
Critics of the December 15, 2003, Newsweek cover story say it should not have detailed stories of coaches and other who were sued because, supposedly, they are protected by the Volunteer Protection Act of 1997.
The Act:
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does not protect from suit organizations themselves or their employees or volunteers who receive more than $500 per year in compensation.
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Even for covered volunteers, the Act does not bar suits, but merely allows a sued person to prove that he or she is covered by the Act, and go through the expense and trauma of a lawsuit.
Read these summaries for a complete list of exceptions to protection. Do you feel safe?
(http://www.bricker.com/publications/articles/148.asp and http://www.runquist.com/article_vol_protect.htm)
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