Health Sciences - Tort Reform - Assignment Example

Tort Reform Tort Reform Torts have been defined as a category of acts that are wrong and are committed against another individual in the absence of a preexisting contract and for which courts are determined to solve. Torts fall under civil law and are viewed by some as a section of the law in need of reform (Buchbinder, &Shanks, 2007). Tort law plays a fundamental role in healthcare delivery services .It encompasses a number of key areas within the healthcare system. These include negligence, intentional torts and infliction of mental torts.

Torts have a direct impact on a healthcare institution through these three areas. In the case of negligence, there is need for 4 key factors to be present. The party termed negligent must have duty towards the party that is harmed, there has to be a breach of duty, the harmed must prove damage/injury from the interaction and causation has to be proven. Under tort law it is possible that charges are also brought against the organization under the doctrine of respondent (Buchbinder, &Shanks, 2007).

Intentional torts also guide the practice in healthcare. For instance if a surgery is performed on a patient without his or her consent, or keeping a patient under an unnecessary form of restrictive care it is possible to be sued for committing an intentional tort. Invasion of privacy especially with regard to the patient’s medical records is another form of tort. Therefore tort applies in a wide continuum of medical care practices and governs the practice (Buchbinder, &Shanks, 2007). The state of California adopted a tort reform measures at around the 1970’s in response to the increase in costs of medical malpractice insurance.

The state imposed caps on the plaintiff’s/victims compensation for those damages that are non economic (they are difficult to quantify). California also placed limits to the contingency fee of attorneys. In particular, the state of California limited the non economic damages in lawsuits of medical malpractice to $ 250,000. The state additionally limits attorney’s contingency fees in the cases of medical malpractice in the following form. For the first $ 50,000 a contingency fee of 40% is charged, for the next $ 50,000, a 33.

33% fee is charged, for the next $ 500, 000, a fee of 25% is charged, and a fee of 15% for any amount in excess of $ 600, 000. These caps apply in all the forms of settlement. This means that regardless of the mode of recovery (arbitration, settlement, judgment). In such a case that the award will be paid over a period of time, the court is expected to place a total value on the award/payment to be made based on the estimated life expectancy of the plaintiff. This is then followed by calculation of the contingency fee (Harleston, 2002).

Currently, far too many medical malpractice cases occur in the state of California. The cases occur at an alarming frequency. Many of these medial mistakes are preventable and in some cases appear to be way too simple to actually occur. According to statistics by the state of California, approximately 200 hundred cases were reported to involve the forgetting of leaving foreign objects inside patients after performing a surgical procedure. The 200 cases are part of approximately 2,500 reports of adverse events that concern hospitals and the mistakes that they allegedly made with patients (Scarlet Law Group, 2012).

In response to the increasing cases of negligence, the state of California decided that all the rules that the plaintiff in a case of medical malpractice had to follow in order to file for damages do not apply to cases that fall under the Elder Abuse and dependent Adult Civil Protection Act. The court said that elder abuse claims go way beyond the professional negligence claims that are often made in medical malpractice lawsuits. The court also noted that individuals who perform egregious acts do not deserve to be afforded similar protection that they would normally receive in a case that deals solely with medical malpractice.

According to the definition given by a state appellate court, a dependent adult includes any individual who is aged between 18 and 64 and is admitted as an inpatient within a 24 health facility. As a result of the ruling and changes in the law, many medical practitioners fear an increase in the number of elder abuses in many of the cases of malpractice (Albert, 2004). The California healthcare Association and the California Dental Association expressed fear that these changes would result in an increased attacks in the Medical Injury Compensation Reform Act.

This Act is the old tort reform that is responsible for keeping the market of medical liability insurance stable (Albert, 2004). The tightening of the law by the state of California resulted in nearly $ 3,000, 000 in fines. These fines were being levied against hospitals in Los Angeles, San Francisco, and San Diego etc. These changes in legislation have resulted in drastic changes in hospitals especially with regard to surgical policies across the state (Scarlet Law group, 2012). References Albert, T.(2004). California tort reform shaken by abuse laws as court creates inpatient loophole.

Retrieved from: http://www.ama-assn.org/amednews/2004/05/17/prl20517.htm Buchbinder, S.B., & Shanks, N.H. (2012). Ethics and law. In M. Gartside & T.Reilley (Ed.), Introduction to healthcare management (333-363). Burlington. MA: Jones & Bartlett Learning. Harleston, J. (2002). Medical malpractice tort reform. Retrieved from: http://www.cga.ct.gov/2002/rpt/2002-R-0782.htm Scarlet Law Group (2012). California medical malpractice issues draw scrutiny from state. Retrieved from: http://www.scarlettlawgroup.

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