Tort reforms for medical malpractice preoccupy much of the legislative agenda for any state legislature as well as much of the time and budget of a state’s medical society. However, in truth, state legislators and the administrators of medical societies only care when it is to their advantage.

Because I am a physician in Maryland, I use Maryland as the example. In most states, tort reforms achieve six goals:

• Caps: In Maryland for instance, in 1986, the cap on noneconomic damages is first set at $350,000, and increases by $15,000 each year. In 2025, this cap for a medical malpractice lawsuit reaches $905,000. I am reminded that the largest medical malpractice plaintiff verdict in history, $229.6 million, occurs in Maryland. Although it is later reduced by the cap on noneconomic damages, it remains the largest plaintiff verdict in history.
• Arbitration: In Maryland, before a medical malpractice lawsuit can proceed in court, the claim must be filed with the Health Care Alternative Dispute Resolution Office. I am reminded that the number of cases reviewed by the HCADRO remains between 600 and 650 per year since 2005. At this rate, by 2030 every practicing physician in Maryland will be sued at least once. Only 20 cases per year are settled by arbitration for an average of $425,000.
• Certificates of merit: Within 90 days of filing the claim with the HCADRO, the plaintiff’s attorney must file a certificate of merit from a qualified medical expert. I am reminded that very few claims include a certificate of merit at the initial filing. A tort reform, which allows this, is not a tort reform.
• Expert witness rules: The “20 percent rule” limits a medical expert from spending more than 20 percent of professional time performing as an expert witness. Over time, the 20 percent rule becomes the 25 percent rule. I am reminded that a decision-making process for a medical expert has little if anything to do with the percent of professional time spent as a medical expert. Tort reforms concentrating on this miss the boat.
• The collateral source rule: Economic damages are reduced by the amount the plaintiff receives from other sources as remedies for the same injuries. For this collateral source rule to click in, plaintiffs must have some form of insurance that protects them. I am reminded that evidence of collateral sources is inadmissible at trial, at least in Maryland. Hence the collateral source rule is not tort reform and all economic damages are left for medical malpractice insurance to pay.
• Contributory negligence: In Maryland, a plaintiff is barred from recovering anything if they are found to be even slightly at fault for their own injury. I am reminded that courts hold a patient’s unhealthy lifestyle or delay in seeking care irrelevant, as they do with imputed negligence by a pregnant mother in a “bad baby case.” Hence, unless tort reforms deal seriously with these as proximate causes of injuries, contributory negligence just gives tort reform “lip service.”

The one thing that tort reforms should address (i.e., the ability to discriminate a nonmeritorious claim from a meritorious one) is the one thing that remains unaddressed. Tort reforms are enacted in response to the rising cost of medical professional liability insurance premiums. Premiums stabilize in Maryland; however, Maryland still ranks 45th out of 50 for medical malpractice litigation.

I expect more of “so-called” legislators. As a physician, who, like many of you, has been sued, I could care less about tort reforms. Doctors never enter a single patient encounter in which medical malpractice is not a consideration. At the very least, “defensive medicine” results. However, I find a better way to protect myself by innovating a decision-making tool which I call CCC+C.

It is a matter of fact that medical experts are most instrumental in the success of a medical malpractice lawsuit. Yet, tort reforms permit medical experts enormous discretion while, at the same time, tort reforms protect the identity of these experts. Their performance and their identity are the problems. Tort reforms should identify a medical expert as soon as one is involved and should manage their performance by measuring their biases.

I expect that any state or federal legislator, or aspiring one, should appreciate the following tort reform proposal.

The defendant in a case and the medical expert, whether for the plaintiff or the defense attorney, must prepare a certified report immediately upon completing a review of medical records. Hence, all qualified medical experts are identified. The report is shared with all parties, named or unnamed in the medical malpractice lawsuit, including the medical malpractice insurance carrier. The report, which also qualifies as a certificate of merit for a medical expert, must specifically address five features:

• The conclusions: (a) The complication is a medical error or an error of nature; (b) the medical intervention comports with or departs from the standard of care; (c) there is or there is not proximate cause.
• A statement that conclusions are determined using the scientific method and hypothesis testing. Both are generally accepted norms for decision-making in the medical profession. Doctors, be they defendants or medical experts, are scientists and are more literate with the scientific method and hypothesis testing than they are with legal methods.
• There is acknowledgment that the decision-making method is peer-reviewed by respected journals in appropriate fields of authority.
• The curriculum vitae of the author of the report, be he or she the defendant or the medical expert, is attached.
• Type I error is X percent and type II error is Y percent. Hypothesis testing has a “known error rate.”

Among other things, the report establishes the decision-making process upon which opinions are rendered. As a tort reform, this may not change the game; however, it does level the playing field. This proposal supersedes tort reforms, at least those passed in Maryland.

Howard Smith is an obstetrics-gynecology physician.