Tort Reform Is Not the Answer to Healthcare

Healthcare reform that involves government interference in any way should not happen.   Maybe the system is broken, maybe it isn’t.   But one thing that will not help the situation is tort reform.    Lawsuits are not the problem.

Study after study shows that 5% of all doctors commit 95% of the medical malpractice.   The medical licensing boards refuse to yank the license of these doctors.    Or, if the license is yanked, the doctor just crosses state lines and get licensed in a new state.   Free to continue committing malpractice.   I’m an attorney.   I screw up, there goes my license.   If I try to apply in another state, I must disclose any other licenses and the status of that license.   I even have to disclose any applications for bar admission — even if not admitted.   If I am licensed in more than one state and get in trouble in state B, State A gets to yank my license to.   Doctors do not face this.   Their own rules protect them.

Everyone screams about the high jury verdicts.   Just like they screamed about the McDonald’s coffee verdict.   But, everyone hears the numbers without regard to the facts behind it.   In the McDonald’s case, McDonald’s knew their coffee was dangerously hot and chose to continue to keep it at that dangerous temperature.   Also, the woman who was burned was not just a little red or had a little discomfort.   She was hospitalized several days and needed skin grafts.   The same is true in a medical malpratice case.   The facts are that once a case goes to trial, there are usually major damages and the defense is only offering a paltry amount.    To fix damages committed by medical malpractice — or to pay for pain and suffering — when it can’t be fixed is not cheap.    Also, remember, you only hear about the big verdicts.   You don’t hear so much about the legitimate cases that could not even get in the courthouse door because of the roadblocks to filing.

Medical malpractice cases are the ONLY cases where you have to provide corroboration of the allegations with the pleadings.   In most cases, your expert witness supporting the allegation is identified later then testifies at trial.   To file a medical malpractice claim, you have to have a doctor sign an affidavit that malpractice occurred at the time you file the suit.   If you sue a car mechanic, not necessary to have that affidavit.   If you sue a lawyer, don’t need that affidavit.  If you sue a car manufacturer or any other product manufacturer, you can go with the bare allegations and provide support later.    Only medical malpractice provides this hurdle.  

There is also another hurdle to filing, you must file a bond to show your good faith.   Every other pleading, the lawyer’s signature is enough to show a good faith belief this is not a frivolous lawsuit.   But somehow, for medical malpractice suits, a lawyer’s word is not good enough.   If lawyer’s lie  and file frivolous suits all the time, why only require bonds for one specific type of case?    Because the bond makes it harder for citizens with legitimate complaints to access the courts.  

The purpose of the hurdles is just that — to keep cases out of the courthouse.   Does it keep out frivolous suits?   Yes.   Does it keep out legitimate claims?   Yes.    Courts need to enforce existing rules against frivolous lawsuits of all kinds, rather than make it harder to bring specific types of claims.

Lawsuit reform sounds easy.   It doesn’t sound like government interference in people’s business (but it is).   In reality, it will not solve the problem.   It will only allow doctors who commit malpractice to continue to do so without fear of repercussions.

When it is your four year old who has his tonsils out at 6 a.m. and is dead by noon because they failed to monitor his anesthesia properly, when it is your elderly loved one shoved in a corner and her pain ignored because the doctor can’t be bothered to come to the nursing home on a weekend and the staff fakes the DNR to justify their actions* — then tell me how we need to make it even harder to bring legitimate lawsuits.  








*actual cases I worked on as a paralegal before becoming a lawyer.