The case continues for health courts. An ER doc is forced to settle cases without merit simply because it’s cheaper than going to an unpredictable trial:
I am also aware that the defense prevails in many or most malpractice actions. To me, this is not an indication that the system works. Quite the opposite. There have been cases of which I was personally aware in which the care was clearly substandard but the defense experts were more convincing and the jury went along. The problem is not that doctors win 87% of the time, nor that awards are out of control. The problem is that juries are unpredictable and commonly make very wrong decisions. The result of this is that in many cases patients who were injured go uncompensated (especially if they are not sympathetic victims), and that doctors who were not culpable wind up losing.
Related posts:
- High-low agreements in malpractice cases
- The cost of bringing a malpractice suit
- "Fear of erratic jury decisions in medical malpractice cases has spawned a culture of fear"
- Mark Herrmann: Regulation by lightning bolt
- Malpractice: Settling versus going to court
- Baseless lawsuits
- How malpractice cases affect physicians emotionally
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I would be willing to go along with this as long as we have comensurate reform on the PI side. PI cases would have to be argued in “science courts” and junk science clinical causation testimony would not be allowed unless the clinician showed that they were capable of actually evaluating the history itself. We would also need caps on the amount that physicians could recover in PI cases in order to prevent out of control awards based on clinical overtreatment, bill padding and unnecessary surgical intervention.
Kevin, simply because you say something “makes the case for health courts” doesn’t make it so. Surely a physician can understand the importance of facts to back one’s diagnosis up?
CJD, the bottom line is, if you sued me, I’d rather suck your ugly bone then have to sit through a month of court with you, and I’d settle in a second if it guaranteed you couldn’t go after my personal assets. Fear of the unkown is what drives markets and economies, so we settle to avoid the John Edwards size settlements. Like you guys say, “it’s nothing personal”, so I’d be happy to settle and move on with my life and hopefully save enough money and practice defensive enough medicine so I can get out of this hellhole profession. We propose health courts not because we can prove they work but because the current system is so ridiculous anything would be an improvement. Right now a horse who stomps “once” for Plaintiff and “twice” for defendant would be preferable to most physicians.
Have you ever settled a claim? Do you think the very few cases that ever make it to court take a month to litigate? Do you really bend over that easily?
I disagree that most physicians or insurance companies will settle a nonmeritorious claim, and most attorneys of merit will not bring a frivolous suit, although they will typically embellish the long list of harms caused. Suits that are settled tend to be meritorious or have some dynamic that makes them not worth continuing to defend.
I wish you luck on overcoming your fears. Shake that rusty cage and free your mind.
What is needed are alternative methods to compensate damages with minimal transaction costs.
The main method most persons of means use is insurance. Think of all the different kinds of insurance you carry. If I have a bad outcome occur to me, business overhead and disability insurance will protect me. If I die, I have life insurance. I have health insurance to cover my medical expenses.
But most people have none of the above. Part of the problem is that many patients who simply have bad outcomes or unfortunate events often have no way to pay their bills, so they sue.
With the pervasive influence of the federal government on payor reimbursement and regulation, it is time for the government to start funding the bad outcomes. They essentially could have an RBRVS-like formula to reimburse in a no-fault way to the extent one is not covered by private insurance. As the government reimburses the physician the same amount for billionaire or street urchin, so should they standardize awards. Bad doctors could easily be policed and terminated from participation in federal programs.
This is one of the most distorted stats in the debate over medical malpractice litigation. Nationwide, only 4 percent of all malpractice cases are decided by a jury. The vast majority of all cases filed – roughly 80 percent – are settled out of court in favor of the injured patients and their families, most with secrecy agreements so the public can’t find out about the doctors’ mideeds. Of the 4 percent of cases decided by juries, 3 out of 4 are decided in favor of the defendant doctors and hospitals.
First of all, they are the most difficult cases for the plaintiffs to win; otherwise, they would have settled, as most do. Secondly, if jurors reject 3 out of 4 cases, doesn’t it show that our system of justice works? Doesn’t it show that “average folks” who sit on juries aren’t as stupid as tort reformers would have us believe?
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