Tort reform reduces number of cases filed. Ok, but is it a good thing?

The TortsProf blog is reporting today on a Nashville Public Radio story (available here) that states that medical malpractice filings declined 60% in 2009. It suggests that this result may be due to the fact that, in 2008, the Tennessee legislature passed a law requiring a third-party certification from a doctor or nurse that a claim has some merit and notice 60 days prior to filing suit. Given the law, the result is not suprising. However, without more it is impossible to determine if the result is a good thing. I have argued before (see here and here for example) that the fact that filings go down after a tort reform measure is approved is not surprising. That is precisely the purpose for which the measure was approved in the first place. The goal of tort reform is to make it more difficult for victims to recover for their injuries (by making it more difficult for them to get to court) or, if they can get compensation, to reduce how much they can recover. Caps on damages are examples of the latter approach to reform; requiring a certificate of merit is an example of the former. However, lowering the number of cases filed is not necessarily is a good thing. It is important to determine why torts cases are down. Tort reformers typically argue that reforms are needed to reduce the numbers of frivolous cases. The problem is that tort reform initiatives don't necessarily work to distinguish the frivolous cases from the valid ones. They simply make it more difficult for everyone. The fact that the number of cases filed has gone down could mean that there are fewer frivolous cases filed (which would be a good thing), or it could mean that there are fewer meritorious cases filed (which is a bad thing). We just don't know; but I suspect it is a combination of both. I prefer a system that allows all meritorious cases a fair chance to go forward even if it means that some frivolous claim might get through too. There are mechanisms in place that work pretty well at reducing frivolous litigation including procedural rules that call for sanctions on the attorneys, professional conduct rules and the basic reality that attorneys are not going to invest time and money in a contingency fee case that has little chance of success. Now, back to the beginning. The Tennessee statute requires certification from a doctor or nurse that a claim has some merit and notice 60 days prior to filing suit. As I said above, this is an example of the approach to tort reform that seeks to make it more difficult for victims to file claims by making it more difficult for them to find representation and to find expert witnesses willing to certify their claims. Here is a link to an article about how although the number of medical malpractice lawsuits is going down, it is not necesssarily for the right reasons. Tort reform statutes are effective in reducing the number of cases, but not necessarily because those cases are frivolous, but because victims with valid claims have a hard time finding representation. The Nashville Public Radio story has another interesting point. The State Senator who sponsored the bill, an attorney who represents doctors and hospitals, admitted that the decline in medical malpractice claims hasn’t resulted in lower malpractice insurance premiums. This is consistent with the data in all other states that I know of where tort reform has been approved. The senator is quoted as saying “Now we’re waiting to see if the medical malpractice insurance premiums, in turn, come down. We’ve only had about a year to watch this, but with 60% fewer cases filed, I’m hopeful.” Given the history in other states, I wouldn't hold my breath.... The story then concludes saying that the senator "says simple laws to weed out what he calls “frivolous lawsuits” could potentially lower costs throughout the healthcare system." For recent articles that debunk this myth go here, here and here, and for more on the subject in general click on the sections on Tort Reform or Medical Malpractice of this blog.