“Evidence” Indicates that 2003 Texas Medical Malpractice “Reform” Did Not Re

There are many ironies and inconsistencies in the world of arguments on tort law and "tort reform." One of the ironies is that proponents of "tort reform" often are inconsistent in their approach to evidence and outcomes.

How so ? For one, "tort reform" advocates typically also are fond of demanding that juries and courts make decisions based only on "gold standard" evidence. That is, they object to admitting anecdote, animal studies or other information unless backed by double-blind empiric studies. That, they say, is "evidence." For evidence, see most any defense-side Daubert challenge in any case.

When it comes to arguing for tort reform, the advocates often argue that imposing strict limits on medical malpractice claims will reduce health care costs by reducing so-called "defensive" medicine. But where is the evidence to prove these arguments? To my knowledge, there is no such evidence, and I do keep my eye open while reading. But what one does find is evidence indicating that "medical malpractice reform" in fact does not lower health care costs.

For the most recent example, see this New York Times article of today by Kevin Sack, and this new study from four law professors. And, happily, the study focuses on Texas, a state much in the news today because of Mr. Perry’s many claims. The abstract states:


Will Tort Reform Bend the Cost Curve? Evidence from Texas

Myungho Paik

Northwestern University – School of Law


Bernard S. Black

Northwestern University – School of Law; Northwestern University – Kellogg School of Management; European Corporate Governance Institute (ECGI)


David A. Hyman

University of Illinois College of Law


Charles Silver

University of Texas at Austin – School of Law

July 16, 2010

Abstract: Will tort reform “bend the cost curve? Health care providers and tort reform advocates say ‘yes.’ They insist that defensive medicine is responsible for hundreds of billions of dollars in health care spending every year. If providers and reform advocates are right, once non-economic damages are capped and lawsuits are otherwise restricted, defensive medicine will substantially decline and health care spending will fall dramatically.

We evaluate the potential of tort reforms to reduce health care spending by studying how Medicare spending in Texas changed after the state adopted a comprehensive package of tort reforms in 2003, including a fairly strict cap on non-economic damages. Using longitudinal data on med mal claim rates and on health care spending, we first compare spending trends in Texas to spending trends in neighboring states and the nation as a whole. Post-reform, we find no evidence of reduced Medicare spending in Texas relative to these comparison groups. We then compare health care spending in Texas hospital service areas (HSAs) with high med-mal pressure to Texas HSAs with low med-mal pressure. Pre-reform, we find no evidence that Medicare spending was higher in high-pressure HSAs than low-pressure HSAs, and no evidence that spending grew faster in high-pressure HSAs. Post-reform we find no evidence that high-pressure HSAs experienced any change in spending trends, relative to low-pressure HSAs.

In sum, we find no evidence that Texas’ 2003 tort reforms “bent the cost curve.” (emphasis added)

Keywords: defensive medicine, medical malpractice risk, tort reform

JEL Classifications: I11, I18, K13, K23, K32

Working Paper Series

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Please let me know if you know of any contrary "evidence" – I’ll be glad to publish it in an updated post.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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