How to reform medical malpractice - Ahwatukee Foothills News: Commentary

default avatar
Welcome to the site! Login or Signup below.
Logout|My Dashboard

How to reform medical malpractice

Font Size:
Default font size
Larger font size

Posted: Tuesday, March 23, 2010 11:00 pm

In a nationally significant decision, the Illinois Supreme Court recently demolished the Republicans’ favorite tort-reform tactic. It nullified a law limiting non-economic liability damages for medical malpractice to $500,000 for doctors, $1 million for hospitals. According to the court, the state legislature unconstitutionally usurped the judiciary’s jurisdiction.

Courts in nearly half of the 28 states enacting similar legislation have outlawed jury-award caps. As headquarters for the American Medical Association, a zealous advocate of jury caps, Illinois commands special attention. Occurring during the long health-care reform debate, its court action highlights a serious omission from the health-care bills.

Statutes capping malpractice awards spring from a ludicrous logical error. They attack “frivolous” lawsuits by limiting awards in “meritorious” lawsuits. Only 20 percent of court-tried malpractice cases result in plaintiff victories. If this small minority of lawsuits is frivolous, then our entire civil-justice system is hopelessly incompetent. It needs more than mere capping of jury awards.

Our medical malpractice problem is undeniable. American malpractice litigation is proportionately four times Britain’s. Skyrocketing insurance premiums have closed hospitals, sparked physician strikes, and driven doctors — notably obstetricians — into premature retirement. Malpractice costs account for possibly 10 percent of total health costs, roughly $200 billion annually, according to former Sen. Bill Bradley. Useless tests and procedures prompted by fear of lawsuits needlessly raise medical costs.

There are readily adduced reasons for our excessive malpractice litigation, all stemming from our unique, plaintiff-favoring civil justice system. Foremost is the so-called American Rule, which requires both parties to pay their legal fees and court costs. Under the English “loser-pays” rule (in effect nearly everywhere except here), plaintiffs’ attorneys are deterred from filing frivolous lawsuits by the threat of paying successful defendants’  costs. In the U.S., plaintiffs filing frivolous lawsuits can win settlements from innocent defendants seeking merely to avoid the often huge cost and anguish of a successful defense.

Other important factors corrupt American civil justice. Europe has neutral, court-appointed expert witnesses. Their testimony is more reliable than the often biased adversarial testimony in our courts. Conflicts between opposing psychiatrists’ testimony can become a joke.

Unlike the U.S., Britain generally bars juries in technical cases. For plaintiffs’ lawyers, the ideal juror is a malleable moron, readily identified by high-priced jury consultants. Half-witted jurors awarded $1 million to a Philadelphia psychic who claimed that a CT scan destroyed her predictive faculties. O.J. Simpson’s 1995 criminal trial displayed jurors’ scientific ignorance.

European courts have more rigorous requirements for initiating lawsuits. In the U.S., the 1930s’ advent of “notice pleadings” encouraged plaintiffs’ fishing expeditions. European courts also display less tolerance for harassment of defendants, via excessive depositions, interrogatories, and  document requests, all designed to wear down defendants and force settlements.

Back in 1995, a congressional bill would have established the English loser-pays rule in federal courts. It went nowhere, of course, defeated by the trial lawyers’ lobby. Trial lawyers own Democrats; corporations own Republicans.

If our political system wasn’t polarized, there could be a solution. Democrats would take on trial lawyers; Republicans would take on the insurance and drug companies.

But that, of course, is utopian idealism.


C.W. Griffin has lived in Ahwatukee Foothills since 1988. He is a retired consulting engineer and a published author.

More about

More about

  • Discuss

Arizona Newspaper Breaks With Tradition, Backs Clinton

The Arizona Republic has endorsed Hillary Clinton for president — the first time the newspaper has backed a Democrat in its history. The Repub…

Published: September 28, 2016 - 10:02 am @…

Phoenix, AZ: Attractions, Events, Desert Living Tips

The Latest in Phoenix Take a Day Trip From Phoenix To Pick Your Own Pumpkin These Arizona farms offer October harvest festival pumpkin picking…

Published: September 28, 2016 - 9:51 am @

The State of Arizona's Hispanic Market Is Strong

Griselda Nevarez A A Spending by Latinos in Arizona is on the rise. They are projected to spend $42.5 billion by the end of this year. That's …

Published: September 28, 2016 - 9:50 am @…

Conservation Groups Celebrate Signing of New California Climate-Change Bill

Taking a look at what's making headlines: Democrats in the nation's capitol are holding out for more funding to deal with toxic water in Flint…

Published: September 28, 2016 - 9:22 am @…

Data: Adult smoking rate in Arizona drops to 14 percent

PHOENIX - Data from the Centers for Disease Control and Prevention show that the adult smoking rate in Arizona has dropped to 14 percent. That…

Published: September 28, 2016 - 9:01 am @…

Half of People Killed by Police Have a Disability: Report

Almost half of the people who die at the hands of police have some kind of disability, according to a new report, as officers are often drawn …

Published: September 28, 2016 - 8:51 am @…

Marijuana legalization 2016: A glance at 9 states with pot measures on the ballot

SAN FRANCISCO — From California, with its counterculture heritage, to the fishing ports and mill towns of Maine, millions of Americans in nine…

Published: September 28, 2016 - 8:52 am @…

Mexicans will continue to bash Donald Trump piñatas

Donald Trump: “Our jobs … they’re going to Mexico.” (Drink!) The U.S. presidential debate made for a lively drinking game Monday night — in Me…

Published: September 28, 2016 - 8:21 am @…

Conservative Arizona Newspaper Endorses Hillary Clinton

A conservative Arizona newspaper on Tuesday endorsed Hillary Clinton for president—the first time in more than a century that it has announced…

Published: September 28, 2016 - 8:00 am @…

Facebook on Facebook

Twitter on Twitter


Subscribe to via RSS

RSS Feeds


Most Popular

Online poll