"Democrats ... want universal health coverage, believing that if other industrialized countries can achieve it, surely the United States can. For Democrats, universal coverage speaks to America’s sense of decency and compassion. Democrats also believe that it will lead to a healthier and more productive country.  ...Republicans ... want legal reform, believing that our economic competitiveness is being shackled by the billions we spend annually on tort costs; an estimated 10 cents of every health care dollar paid by individuals and companies goes for litigation and defensive medicine. For Republicans, tort reform and its health care analogue, malpractice reform, speak to the goal of stronger economic growth and lower costs."  Bill Bradley op-ed contribution to The New York Times.

Bill Bradley goes on to say that a commonsensical alternative to the current medical malpractice legal system might be the creation of medical courts something on par with bankruptcy or admiralty courts.  I have written before about the viability of "Medical Malpractice Courts" and I personally think they may be a reasonable alternative.  I know, because I have been a registered nurse and now a medical malpractice attorney, that many instances of medical malpractice go unreported because the doctor fears loosing everything he has worked for.  Doctors fear litigation, justifiably so, and as a result tend not to freely report medical malpractice.  However, their fear of litigation does nothing to compensate the patients that are harmed as a result of medical malpractice and in the bigger picture does nothing from stopping a similar cause from happening again and injuring more people.  It is all kept very hush hush and swept under the rug. Medical malpractice legal reform will not by itself bring the costs of health care lower.

That is the rub - we all make mistakes - but the injured person needs to be compensated and the system looked at to prevent injury from occurring again.  If there is to be health care reform and if that health care reform either succeeds or fails because of medical malpractice law reform we need to be open and honest first about the problems and second about the solutions.

First of all the idea that medical malpractice attorneys make too much money from the clients they represent in medical malpractice actions is just not true.  Yes - the fee is 33.3% of everything earned but a close analysis of medical malpractice cases shows that most medical malpractice cases are settled short of trial.  This datum supports the contention that good cases settle and more difficult cases go to trial.  In other words if you have a slam dunk (if there is such a thing) medical malpractice case it is probably destined to settle short of trial.  On the other hand if you have a more difficult medical malpractice case (liability is a problem or relatively small damages) chances are your case will either be dropped by the lawyer or you will need to go to trial.  Because the case is tougher (perhaps because liability is sharply contested) these cases are sometimes won by the plaintiffs but are more often lost because primarily of the anti-lawyer pro medical malpractice reform sentiment in society.

This war of medical malpractice legal reform is fought primarily in the media and manifested in the verdicts, most often for the doctor, at trial.  Who ends up being most disserved by this war is of course the medical malpractice victim.  I often have people in my office that are clear victims of medical malpractice but their injuries are too minor to support a case.  For example, a person who has non-permanent injury but left with the need for repeat surgery might launch a medical malpractice case.  However, such a case might only settle for $50,000 and once the attorney fee and costs (mostly the cost of experts to prove the case) and medical bills repaid are subtracted the injured client may only reap a retuen of perhaps $10,000 to $20,000 and that assumes that all goes according to plan and the case settles.  If the case does not settle and you need to go to trial you can expect a negative return.

Maybe medical tribunals are the way to go.  Of course the devil will be in the details.  Who decides if what a doctor did was within the standard of care?  Do we force a judicial responsibility onto the medical community relying in their ability to self-regulate their own profession?  Do we create an independent judiciary that makes tha call and determines damages?  DO we bisect the case and require liability in one forum and the amount to be paid (damages) in another?  Who are the judges going to be - doctors or lawyers or neither?

Comments (0)

Subscribe to this comment's feed