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With the recent passage of Obamacare and the focus on healthcare expenses, there has been much discussion about the costs of medical malpractice claims.

Recent studies have shown that high payouts for medical malpractice claims are only a very small percentage of United States healthcare expenditures. Payouts per year between 2004 and 2010 were only .05 percent of the U.S. healthcare expenditures, or roughly $1.4 billion per year.

The same study found that the real problem was that doctors were ordering more services and tests because of the fear of being sued, called “defensive medicine.”

Typical items on the tort reform agenda include caps on damages, requiring letters from experts before allowing a patient to sue, or requiring a more onerous standard of proof (clear and convincing, not just beyond a reasonable doubt). None of these really solve the problem, and instead just make it harder for an injured person or the family of a wrongful death victim to pursue a claim.

A new solution may be to change the definition of medical malpractice.

Under current laws, injured patients pursuing a medical malpractice claim are required to prove that the medical provider did something "below the standard of care".

This is a very vague standard to determine whether the medical provider acted reasonably. There is a lot of room for interpretation, and a jury decision can hinge on a battle between opposing experts at trial. These experts come at a high price, driving up the cost of litigation.

Defining the standard of care, doctors would be able to order fewer services, so long as they were following established standards – thereby decreasing the cost of “defensive medicine.”

Clarifying the standard of care would also decrease the execeptionally high costs of litigation in medical malpractice cases, as the expert witnesses would not be debating the standard.

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