Tort Reform and Frivolous Lawsuits: Show Me the Money!

The following is cross posted with permission from our friend of the blog and contributing author, Dr. Michael Kirsch of MD Whistleblower (please see our blog roll). Thank you, Michael!

Several months ago on this blog, I informed readers that I was a defendant in a medical malpractice case. I offered no specifics, as I didn’t want my attorney to fire me as a client, in case he discovered the post. Although the plaintiff was granted two 45 day extensions to troll for an Ohio physician to sign an affidavit of merit against my care, none could be found. My lawyer had reviewed every syllable of the medical record, and couldn’t divine an allegation against me. My lawyer and I were groping guests in a Chamber of the Absurd - trying to figure out what allegations the other side might concoct.

After a few months, I was dropped from this case that should have never been filed in the first place. Years ago, as a younger and more idealistic gastroenterologist, I was kept dangling on a lawsuit for a few years. I endured the light hearted amusement of the discovery process, including expert witnesses outside of my specialty who claimed in their written reports that my care was negligent. The deposition was so much fun, that I was disappointed when it ended. “One more hour, please”, I begged, After the ‘experts’ reviewed my testimony, they recanted, but I wasn’t formally dismissed until a few days before the trial date. Nearly 20 years later, the memory of this unfair experience still lurks in a dark recess of my mind. Lawyers don’t get this, as they don’t appreciate how deeply personal malpractice litigation is for physicians. For them, win or lose, they close their briefcases and move on to the next case.

Had the plaintiff’s attorney reviewed the record prior to suing me, he would have concluded that my care was proper and that I should not be targeted. Although in Ohio, an affidavit of merit is required to sue a physician for medical malpractice, judges will extend leniency to plaintiffs and grant extensions, as occurred twice in my case.

On March 31, 2010, I received a letter from my medical malpractice insurance carrier. Although the letter was marked PERSONAL AND CONFIDENTIAL, in all caps, bold and underlined, I feel I can share it with loyal Whistleblower readers.

Here is an excerpt:

Many physicians wonder about the magnitude of the expenses incurred in defense and/or investigation. In this case, they were $9,120.85.
Where was the rush to sue me? The statute of limitations was far in the distance. Because I was named as a defendant from the outset, with no supporting affidavit, nearly $10,000 was incinerated.

I am sure that this scenario occurs in all 50 states every day. Imagine what the aggregate financial cost is of defending innocent physicians, or doctors like me who should never been defendants in the first place. The costs of the discovery process, which I escaped, are orders of magnitude higher than my costs were.

The inarguable facts, disputed by plaintiff attorneys, are that the current dysfunctional medical liability system fails to:


Narrowly target negligent physicians
Capture most patients who have been victims of true negligence
Improve medical quality
I have no idea how many tens of millions of dollars or more are being vaporized in the medical malpractice crucible. With a health care system that is sagging under escalating costs, couldn’t we find a better use for this money?

Keep in mind that the actual costs of litigation are but a fraction of the costs of the medical liability system. Sure, my case burned up 10 grand, but, I will spend much more this year ordering tests and consultations that are as much to protect me as they are to protect my patients. Sad, but true.

Failing to include any real tort reform in the Patient Protection and Affordable Care Act, the health care reform panacea, is legislative malpractice. Hey, that gives me an idea. If I can get one citizen to sign an affidavit of merit attesting that our representatives breached the community legislative standard, defined as what a reasonable legislator would do, can we sue them? We wouldn’t need a judge to grant an extension. Millions of Americans are ready to sign this affidavit yesterday.