Tort reform - a counter proposal

Recently, Dr. Michael Kirsch wrote a thoughtful argument for supporting Tort reform. While he didn't specify the nature of reform he supports, the general convention for such reform is to limit damages in such cases, typically to $250,000.00.

As I said to Dr. Kirsch then, while I support the general idea of reform of our court system, I do not support this solution. I'll explain below, but more importantly, I feel most of the time if we want to oppose a solution to a recognized problem, we have to offer a different solution, and so I will try to.

First, I see as fundamental to any solution the following goals must be achieved:

1. The conduct of irresponsible doctors must be policed - this country pays for the malpractice mistakes of poor practitioners, through maimed bodies, ruined lives AND financially because the cost of that malpractice insurance (both the premiums and the payouts) are passed along to the consumer.

2. Indigent or poor litigants must not be barred from bringing suit by the threat of the cost, or actual cost of entry. If we set penalties, or threaten them with paying the legal costs - defendants simply will load up their counsel team to make the risk of loss too prohibitive to even allow for real suits to be heard.

3. The number of ludicrous claims must be effectively reduced. While I list this third, it is probably the second most important thing to #1.

4. Malpractice insurance must not be subject to the vagaries and losses of malpractice financial managers investing in the markets, bonds, currency trading, whatever.

I want to spend a paragraph on why I oppose the $250k cap. First and foremost, it doesn't work. In states where such caps exist, rates of inflation in medicine are NO lower than elsewhere. It also fails to prevent frivolous cases. Payments in low-grade (to coin a phrase) malpractice cases are far below $250k, so there is little to no reduction in preventing malicious and meaningless filings. In truth, the only people who would benefit in such a system, would be the insurers, because the cost of answering scurrilous claims, of being deposed for frivolous cases, is not avoided by the physician. Their malpractice cost MIGHT be lower IF their carrier actually passed along such savings, but when was the last time you heard of an entire industry passing along reduced costs realized by what they'd term 'greater efficiency'? Typically, such efficiencies are instead realized as profits. The proof is in the pudding either way, malpractice costs whether lower or higher in states with the $250k cap, have not changed the path of overall costs, health care costs overall are just as high and growing just as quickly in those states, as in states without such caps.


So, with those things being said: I have a counter set of proposals, ones which I hope would NOT prevent legitimate cases from moving forward, NOT prevent poor and middle class victims of malpractice from filing claims, and still hold practitioners accountable only for things which they should be held accountable for.

1. Establish an independent medical review board in each state. The board would consist of both doctors, nurses, and patient rights advocates. This board would hear cases requesting the removal of incompetent doctors. Currently, doctors effectively police themselves, and there is no, read zero, chance to strip a doctor of his/her license without repeated cases of grossly negligent (often in fact criminal) conduct.

2. Establish a separate, but equally independent board in each county which would hear cases of alleged malpractice. Each case would get 2-3 hours (at most) to present it's position at hearing - such hearing would judge based on the merits of reasonableness, not just standards of care, but reasonableness of care, whether the practitioner had acted reasonably - this is a standard used in insurance pretty often, and frankly, it works pretty well. In such a case, have 5 jurists decide the outcome, if the case gets at least 2 votes to proceed, then it can proceed to a normal legal trial. To make it legal (contractually enforceable) as anyone could sue to another court saying their case was being legally squelched - make it binding that any claimant who doesn't agree to this sort of arbitration, as well as any doctor, no longer is eligible for Medicare or Medicaid payments. Anyone who signed up for Medicare as a practitioner would be bound by contract, and you can easily pass a stipulation of benefits that any citizen agrees to such arbitration as a matter of benefit.

3. If a case got only 1 (or zero) votes regarding validity, make the lawyer filing the case pay $500 for wasting the court's time(such fine not to be passed on to the claimant to pay). Make the claimant pay $250 as a penalty. Also, create a tracking system such that any lawyer who achieves 10 such findings against him/her, has their license suspended for a year.

The points are: establish the meritability of the case on reasonableness of health care, not potential provability grounds, nor on 'what the law says.' If it wasn't unreasonable care, then create a small fine for the lawyer, and finally, make it so that someone who engages in such malicious cases routinely gets an applicable punishment. On the doctor/practitioner side, make it quick - showing up for such a hearing shouldn't take all day, shouldn't take hours of deposition, and should be resolved on the grounds of whether the caregiver a good job, not even necessarily the best job they knew how.

The other point is, malpractice protection should NOT be for the insurance carrier, but rather the practitioner who provides decent, adequate, and professional care. If malpractice carriers decide to invest their funds in the stock market and lose, the rest of the country should not have to pay for those losses. Many financial services entities are required (for example, by ERISA) to treat certain funds with 'fiduciary responsibility' as such, they are generally prohibited from risky investment practices. This should be true for malpractice premiums as well.

And then there's this, litigation in this country (and elsewhere) can be abused - heavily abused, of that there is no question, but it is also why we have airbags, and seat belts, and warning labels, and black-lung disease payments, and a whole host of other things which corporations have been made to account for when they acted grossly negligently. Without giving the ordinary citizen the right to hold the powerful accountable, many necessary changes we've made in the country would not exist, and more importantly, the little guy WILL wind up powerless - which is precisely against what we have said all along this country stands for, namely, the tyranny of the majority (or the powerful) cannot (and should not be allowed to) usurp the rights of the less powerful.