A bill recently introduced before the U.S. House Judiciary Committee would would make a $250,000 cap on all pain and suffering damages in medical malpractice cases the law of the land for all 50 states. The hitch? The bill is being pushed by Republicans in the majority, but they can’t quite get themselves on the same page when it comes to how to "reform" the tort system when it comes to such claims.
Statistics indicate that at most, 2% of health care dollars can be traced in any way to medical malpractice claims. Despite this figure, the hue and cry from the political right is that we must curb the tide of frivolous medical malpractice lawsuits to control health care costs and to protect doctors who can’t afford increases in malpractice insurance premiums. Such arguments fly in the face of the real world experience of 33 states that have imposed damages caps in one form or another.
Texas is a prime example. Texas passed some of the most draconian tort reform measures in the country, thanks to the political cunning of and factual misrepresentations by political strategist Karl Rove and then governor George W. Bush. The outcome for doctors? Malpractice insurance companies sought increases in premiums rather than passing along any "savings" to policy holders. California had the same experience. The irony is that this reality is not why some arch conservatives are against the current bill proposed in the house.
Two congressman from Texas have spoken against the federal measure claiming that it overrides the current caps in the various states as well as the rights of the states to decide such matters for themselves pursuant to the 10th Amendment. The hypocrisy of such positions is priceless. The Grand Old Party loves the federal dole when it comes to earmarks that benefit their constituents and by extension, their political survival. But if the feds engage in so called interference with "states rights," watch out. Logic suggests that "you can’t have it both ways," but since when has the political right been hampered with logic?
One blogger, Richard Ungar, recently highlighted this very situation in a post on Forbes.com. Mr. Ungar, a southern California attorney who claims to frequently write, speak and consult on health care policy and politics, reveals his political stripes with this quote:
Clearly, there needs to be a system put in place to weed out the nonsense claims from those where there is a true issue requiring judicial attention. Unfortunately, the bill under consideration in Congress does more to punish those with a valid claim than it does to rid the system of these nuisance lawsuits that add costs to health care while creating a logjam in our court system.
Congressmen Gohmert and Poe (of Texas) should exhort their fellow Republicans to consider a solution that would punish those who would abuse the system rather than those who need to avail themselves of justice. To that end, many including myself- advocate the creation of state based medical committees charged with the responsibility of reviewing all the evidence in a malpractice claim before it ever gets to a court proceeding. These councils should additionally have the authority to assess penalties on those who present cases that clearly have no validity.
By making certification of a case by medical experts a prerequisite to going forward with actual litigation, coupled with the risk of a significant penalty assessment on those who attempt to game the medical profession, we can end both the financial and administrative pressure placed on the system while protecting those who deserve to have their legitimate claim of injury compensated.
Right wing nonsense. We already have a "system put in place to weed out the meritless claims from those where there is a true issue requiring judicial attention." It is called the civil justice system that has been touted as the best system that mankind has been able to create to date.
It is obvious that Mr. Ungar does not represent those injured by the negligence of the medical profession. If he ever did represent such people, one of the first things he would have learned is that it makes no sense for anyone to pursue a meritless claim. Those who represent the victims of medical negligence do so on a contingency basis – they only get paid if they are successful with the case. This is the only way that 99% of victims can seek justice because they can’t afford to fund expensive litigation on their own. So,the attorney only gets paid if he or she is successful with a claim. That means the attorney carries the risk of the case with the victim. On top of that, the attorney advances all hard dollars to move the case forward. In malpractice claims, it can easily cost upward of $100,000 to get a case to a jury. Given this, where is the incentive to pursue a frivolous case?
And if the foregoing is not enough, the real kicker here is Mr. Ungar’s proposal to fix the problem. State based medical committees charged with the responsibility of evaluating all of the evidence in a malpractice claim before it ever gets to court. In addition, he claims these committees should have the power to assess penalties for those who present claims that clearly have no validity.
One might expect such a proposal from a non-lawyer. But from attorney Ungar? He has proposed that we substitute the court system with a panel of doctors charged with policing their own profession – I smell fox in charge of hen house. Readers should take a deep breath here and reflect. Medical panelists who are not attorneys do not have the ability to evaluate the admissibility of evidence. That is the province of judges. Medical panelists who are not jurors are not charged with evaluating the credibility of witnesses. That is province of juries. On top of that, my experience with the non-binding panel process that has been in place in Utah for years has revealed one crystal clear fact if nothing else – doctors can rarely bring themselves to cast a critical eye on the conduct of their colleagues who are often their co-workers and/or friends.
Is Ungar’s proposal a system you want in place if you, a family member or friend needs the redress of the civil justice system?
Bret Hanna of Wrona DuBois in Utah, focuses exclusively on litigating plaintiffs’ medical malpractice and catastrophic personal injury cases. He has represented clients in state and federal courts, in mediations, and in administrative proceedings in Michigan and Utah since 1991.