How to reform medical malpractice - Ahwatukee Foothills News: Commentary

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How to reform medical malpractice

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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.

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