Let us make sure that we are comparing the same legal situations here. The laws (to my understanding and I am not a lawyer) governing general tort actions (such as MVAs) differ substantially than those governing professional liability (medical doctors, engineers, etc. engaged in the course and scope of their professional practice). Of course, being a defendant in any action is time consuming.

One (of many) similarities across these two general areas of law is the the expert witness system, which includes the primary care provider proffering “expert” opinion testimony. This is the area that is problematic, from my perspective, in the context of both the run of the mill PI case and the “John Edwards” type medical malpractice case. The latter has been debated here in great detail and suffice it to say that my view on those cases is that they should be vetted for scientific credibility under a rigorous standard akin to that of toxic tort cases – showing general causation and showing specific causation (not the post hoc ergo propter hoc BS that is typically bandied about). It would appear that the majority of posters here are in agreement that bad science gets into the courtroom on a frequent basis in medical malpractice cases and should be stopped. There is little value in cheer leading a point that we all agree upon. Now, let us talk about the more difficult point – the role of provider as litigant advocate/treatment provider and usually one with a vested financial interest in the outcome of the case. This is the form of provider involvement in the legal system that few wish to address. It is more prevalent than you make it out to be. Every single PI case requires a provider (MD/DO or even a chirofrauder) to support the plaintiff’s contention of the case. Not surprisingly, one will rarely hear about the complaints from the physicians involved in these cases when it comes to time away from practice, depositions, trial preparation, etc. Unfortunately, the clinical “science” behind these cases is as bad as that behind certain medical malpractice cases. Relying on the subjective history provided by the litigant in regards to their onset of subjective symptoms, use of a purely subjective physical examination, objective tests for which no methods have been established for dating any pathology present, in inability on the part of the provider to actually evaluate the event in question and quantify the appropriate noxious factor, etc. And yet we see the spurious claim that “because patient denied symptoms prior to the accident, that the accident caused the diagnosed injuries.” These cases, in which the providers profit handsomely, are the ones where there is usually no complaint from the providers about the time, money, misuse of court resources, etc. So, you have the same bad science as in the med mal arena but a correlated amount of criticism based upon the role of the provider as profiteer vs. defendant. If we are going to change the legal system then it should be changed across the board. If we are to have caps on awards then it should be applied to all cases. If we are to get rid of the junk science in med mal cases then we should get rid of it in PI cases as well.

Yes. They are both paying an increased premium. Take away a car from many people and they lose their livelihood.

Actually, the question just asked what percentage go to a trial that lasts more than one week? Do you know the answer or not?

“Furthermore, I have never had to fear that I would be prohibited by law (in my state as in many where liability coverage is mandatory) from continuing in my profession (and therefore in my ability to provide for my family) as a result of a non-malpractice tort claim.”

What law prohibits you from practicing medicine if you are found to be negligent in a malpractice claim?

If claims found in your favor make it harder for you to get insurance, then that’s a problem with insurance, not the tort system.

You continue to generalize your notion that physicians are quite happy taking lawyers dollars to spew their “junk science” in the courtroom, but I believe that it is probably more likely that those who do are a minority. Maybe there are a significant number, but I would rather see patients in my practice, thank you. I also try to steer clear of getting involved in such cases. I am certain that I am not alone.

Most torts are about money. You did something bad, therefore you should make me whole by giving me money. Fine. I get it. I accept it.

One characteristic of med-mal as pertains to the physician, is that for many, it is about much more than money. True, it is about more than money for the plaintiff, but that is all that they can ask for.

So if someone drives recklessly and negligently injures another, casuing him to lose his foot, for example, there is a suit, the reckless driver loses, he or his insurer or both pay some money. Perhaps he is required to take a driver training course if the judge is inclined. He’ll get over it. He will go on. With rare exception, he can still drive. He can continue to go to work, earn a living, etc.

Another person is similarly injured during a medical procedure, resulting in the loss of his foot. For the argument of this discussion, the doctor screwed up and committed some form of negligence. He or his insurer or both have to pay some money. Say he is contrite and agrees to settle with the plaintiff. The plaintiff is satisfied. Now, however, the physician finds that his insurer will not renew his policy. His state requires by law that he have liability coverage. Because of previous claims (for which the hypothetical doctor was found to not have caused malpractice) he has difficulty acquiring coverage, it is prohibitively expensive at best, and while the plaintiff has been satisfied, the physician’s earning potential is diminished (if not eliminated) for at least the next 5 years (in my state).

So, two victims, two negligent people, same injury. Non-doctor pays his increased auto premium, or takes the bus. Doctor pays his increased premium (if available), or loses his livelihood. Equitable?

I should not get an exemption because I am a physician (I never suggested that; your turn to read tea leaves ), and being sued is time consuming for anybody. I am just pointing out the fallacy presented in the rhetorical question posed by Anon 12:59:

What percent of all medical malpractice claims go to trial and last more than one week?

which suggests that
a) the majority of malpractice claims are trivial in terms of the time they consume,
b) Only claims that go to trial consume any significant time at all, and therefore,
c) only the minority of claims, those that get to trial, should be considered when discussing the costs associated with malpractice claims.

I assert that the costs of the cases that do not go to trial are also quite high, and if they are the majority, then very significant. I have also been involved in non-malpractice torts, and they are equally time-consuming, but significantly less taxing emotionally.

Furthermore, I have never had to fear that I would be prohibited by law (in my state as in many where liability coverage is mandatory) from continuing in my profession (and therefore in my ability to provide for my family) as a result of a non-malpractice tort claim.

From my own personal experience, unresolved claims, and claims found in the physicians favor, have a significant negative impact on one’s ability to acquire liability coverage, even in the case where there is no settlement or payment.

When doctors’ partnership agreements go bad, and they sue each other, don’t they do the same thing? Should we in some way limit your ability to do those? Were you in a wreck today and the other party was at fault but their insurer wouldn’t pay and you sued, would the other party not miss time away from their job? Why should you get an exemption because you’re a physician?

As for reading tea leaves into the word “injured”, that’s your own issue. Culpability is for the people who have seen the evidence to determine.

I am involved in 3 cases. One has gone to trial. In the other two I have not yet been deposed. I have spent more than one week missing my patient care duties in all three cases. When you consider meetings with attorneys, depositions, reviewing documents and expert witness reports, I cannot see how anyone misses less than a weeks work before even getting to the courtroom.

anon 11:03:
The injured patient…

Even your language betrays your presumption of the physicians culpability. You will probably argue that he is injured whether the physician in culpable or not, but then you would probably not have used the word “injured”, you would use a word such as ill, sick, suffering, or dead, which describes the patient’s state of being, and not the manner by which he/she arrived there, such as “injured” which connotes that his problems are clearly due to the actions of another (at least in this context).

As for the British version of “loser pays”, it’s not as simple as you presume it to be. If there is a good faith dispute on the facts, the winner may not be awarded their costs. Same with a dispute about the interpretation of a contract clause, for example.

For more info, go here:

http://www.austlii.edu.au/au/other/alrc/publications/reports/75/23.html