Common Problems in Tort Reform Discussions

There are two things in common I see in any discussion about tort reform:

1. A misidentification of the cause of a problem, and
2. A proposed solution that doesn’t actually fix what has been misidentified as the problem.

For example, I recently saw a post on LinkedIn from a defense lawyer about how out of control medical malpractice lawsuits are, and the author of the post cited doctor shortages in areas of Texas and Tennessee as an example.

The problem with that argument? Texas and Tennessee have strict limitations on medical malpractice lawsuits. Both states have caps on non-economic damages. (Seriously, ask any personal injury lawyer in Tennessee about how medical malpractice lawsuits do there.)

So I was surprised the other morning when I read an article in the Atlanta newspaper that began with the claim from “industry leaders” that “the fear, stress and cost associated with medical malpractice claims is contributing to health care shortages across Georgia, particularly in rural areas.”

There are a variety of reasons why professionals in any industry–including medical–choose to locate in certain areas. Maybe one reason is that they want to live in or closer to bigger cities where they can likely make more money? Or they want to live where there are more options for dining, entertainment, schools, etc.?

There’s also a major lawyer shortage in rural areas of Georgia. In a 2022 Daily Report article on the issue, it was noted that about 25% of Georgia’s 159 counties have five or fewer licensed attorneys. Six counties had no lawyers at all. Yet there’s no claim that the threat of legal malpractice lawsuits is the cause.

If other states with strict limits on medical malpractice lawsuits have the same access to care issues as areas of Georgia do, and other industries in Georgia besides the medical industry have the same problems, maybe medical malpractice lawsuits are not the cause of the issue?

What do you think? Join the conversation with me on LinkedIn.