Why the civil litigation system is unfair to physicians

It’s unclear how many non-legal persons actually understand how different civil trials are from criminal proceedings.  Most people have heard that juries in criminal trials are told that they can only find a defendant guilty if their belief that the defendant is guilty is beyond a reasonable doubt. Federal courts define this term further as, “proof of such a convincing character that a reasonable person would not hesitate to act upon it in the most important of his own affairs.”   Many legal specialists quantitatively define this term as a 98% or 99%” certainty of guilt.

Most people are less likely to know that the burden of proof in a civil trial is far less.  In legal parlance, this is stated as a “preponderance of the evidence”.  Quantitatively stated, this is a greater than 50% weight of the evidence for one side or the other.  In layman’s terms, it’s more likely than not that one side is guilty. But there can still be a 49% range of doubt. Additional definitions include, ” just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true.”

It’s understandable that criminal trials have such a high burden of proof in convicting the defendant given what is at stake.  Not being a legal scholar, it’s not at all clear why this standard is so drastically lowered for civil trials. Maybe it’s because civil trials were traditionally considered to be more straight forward and easy to prove or disprove. But they are not. Certainly in the case of medical malpractice the issues are complex and a lack of definitive evidence can be misconstrued by a jury to be evidence to the contrary. I’ll give an example.

A nurse recently told me about an incident many years ago. An older female had been admitted to the hospital with a heart attack. She had been evaluated, treated, and stabilized appropriately per standards of care and was doing well. The night prior to her scheduled discharge she was being monitored on a telemetry floor and while eating dinner she had sudden onset of shortness of breath. She called the nursing station and was immediately evaluated. Within a minute she became unresponsive and went into cardiac arrest. Initially believing that she may be choking on her dinner the staff tried abdominal thrusts and clearing of her mouth and airway but no food or obstruction was found.

Simultaneously CPR was begun and the patient was intubated (a breathing tube placed through the mouth and into the trachea).  They found it was extremely difficult to ventilate the patient (i.e. to use a bag to manually force air through the endotracheal tube into the lungs) and despite their heroic efforts the patient was unable to be resuscitated.

Lawsuits for choking deaths in hospitals and other health care facilities are favorites for families because the concept is easy to understand and they believe it to be near 100% avoidable. Had this case been litigated, there is no doubt that the plaintiffs attorney would have argued that quite obviously this patient died from choking and from the negligence of the staff and physicians.  It would have been stated that the patient should not have been given solid food to eat because of her advanced age or because she did or did not have her dentures provided to her or because the heart attack had made her weak and she should have been evaluated by a speech therapist prior to being given solid food or one or more of her medications depressed her mental status or made her weak so that she was unable to swallow normally or so on and so forth. There would have been no direct or definitive proof for any of these claims but “specialists” would have provided testimony (actually their opinions) that any one of these factors is plausible so that enough doubt is placed into the minds of the jury.

Then the attorney for the plaintiff would have argued that in trying to clear the patient’s mouth the staff actually pushed the food bolus further down into the windpipe. And then it was pushed even further down during the intubation so there was no hope of it being removed and that it completely blocked the airway. The inability to ventilate the patient through the tube will be given as “proof” that the airway was totally obstructed with food.

Granted, there was no definitive proof for any of this. Scientists would call this argument a “theory” but NOT proof and would certainly try to follow this up with actual … you know … evidence. But in the make-believe land of civil litigation, a preponderance of the evidence could easily be interpreted by the jury as a preponderance of doubt in the defense’s claim that the patient didn’t choke. I.e. the plaintiff’s argument seems so reasonable and plausible and all the defense can do is to deny it. Even if this case never went to trial it would have been an excellent candidate to settle out of court.

But this case never went to litigation. The family of the patient decided to get an autopsy. Why? I don’t know. Maybe they really were looking for the truth. Maybe they were looking for the food impacted into and blocking the airway just to make the case that much easier. But instead what they found was the truth.

It turns out that the left side of the patient’s heart had been weakened so much by the heart attack that the wall of the left ventricle literally and suddenly split open. Blood poured out under high pressure into a space surrounding the heart called the pericardium. A thin membrane normally surrounds the heart like a balloon and as the blood poured into this virtual space, pressure built up and squeezed the heart so much that it was unable to beat anymore and stopped. This happened within seconds and is what caused the initial symptoms of shortness of breath. As more blood filled the area around the heart, this increased pressure was transmitted to the chest cavity including the airways and lungs thus making it very difficult to pump air into her lungs against this pressure.

Rupture of the free wall of the left ventricle following a heart attack is unusual and occurs in less than one percent of cases. It is unpredictable and can occur despite appropriate and timely treatment for heart attack. Emergent surgery is usually the only treatment option but the mortality rate is very high especially in severe cases as this one. In short, no one was to blame.

This example typifies why physicians and other health care workers don’t feel like the current civil litigation system is fair or protects them against malicious and baseless litigation. Most malpractice cases in this country are filed not because of actual provable malpractice, but because of an unexpected and severe outcome regardless of fault.  Plantiff’s attorneys threaten to pervert the principle of a preponderance of the evidence into a preponderance of doubt for juries made up of people with the same level of expertise in the complexities of health care as Joe the Plumber. Many of these cases are settled out of court for this very reason.

What is needed is tort reform so that plaintiffs attorneys cannot hope to game the system by taking advantage of weak burden of proof requirements and gullible juries.  What is needed is a system of specialized malpractice courts with sitting impartial panels of medical and legal experts and consumer and patient care advocates. A panel that would reasonably be expected to believe that the odds of a patient choking who has no risk factors for choking are far less than the odds that a catastrophic cardiovascular event occurred in a patient only a few days removed from a heart attack.  A panel would be more likely to understand that a theory is not evidence and doubt is not evidence to the contrary.

Chris Rangel is an internal medicine physician who blogs at RangelMD.com.

Submit a guest post and be heard on social media’s leading physician voice.

Comments are moderated before they are published. Please read the comment policy.

  • http://profile.yahoo.com/4IFMUPAE2JBXSIH63TETLLOBDI fb

    However, plaintiffs win less than 10% of malpractice cases, and statistically, 85% of malpractice cases are brought against approximately 5% of doctors. In terms of the actual proof required, doctors are more protected than any other class of citizens in civil litigation. Yes–the legal profession must monitor for abuse, but doctors should police their own as well. The problem with tort reform is that you’re throwing out the baby with the bathwater–the people who are hurt the most by tort reform are those who have already lost the most–those who are truly damaged by real malpractice.

    • Anonymous

      “plaintiffs win less than 10% of malpractice cases”

      Which strongly indicates that the system is broken: even non-trained juries feel that 90% of cases brought to trial are not malpractice.

      • Payne Hertz

        This is another myth. The low rate of victories in malpractice cases reflects the extremely high standard of evidence needed to prove malpractice, not the validity of the case in question. Contrary to the assertions of this article, it is far easier to get convicted of a crime in a federal court than it is to prove malpractice. With malpractice, you not only have to prove negligence, but that the negligence resulted in some kind of harm which is often impossible to prove or quantify. A doctor’s screw up may have left you in horrific pain, but how do your prove that? Juries have been so heavily conditioned by decades of tort reform propaganda they are far more likely to vote on the side of doctors regardless of the evidence.

        • Anonymous

          “With malpractice, you not only have to prove negligence, but that the negligence resulted in some kind of harm which is often impossible to prove or quantify.”

          Of course you have to prove that the negligence caused the harm. What else would you expect? If a patient was mistakenly given Tylenol instead of Aspirin, would it be fair if the patient claimed he became blind as a result.

          The truth is that REAL malpractice hardly makes it to court. The insurance companies settle those very quickly.

          • Payne Hertz

             Cases that get settled quickly are the result of shyster lawyers who work with the insurance companies to quickly resolve legitimate malpractice claims at lowball rates without risky litigation. The insurance company wins because they settle the claim for less than it would cost to litigate it. The lawyer wins because he gets a decent payday for just making a few phone calls and avoids the cost of litigation as well. It’s the patients who get screwed out of  fair and equitable compensation for their injuries.

          • Anonymous

            Nonsense. Even the best lawyers will take a settlement over trial because they know that jury verdicts are unpredictable. 

            Again, REAL malpractice rarely sees the courtroom. It is why lawyers lose 90% of the ones that go to trial

    • http://www.facebook.com/people/Steven-Reznick/100000549195050 Steven Reznick

      You can have accountability by having National Transportation and Safety Board type investigations of errors and poor outcomes with the cause of the poor outcome identified and processes put in place to prevent similar occurrences from happening. The airline industry did it and we have the safest skies in the world. That doesnt mean practitioners who make errors will not be held accountable , fined, suspended, have their licenses revoked, re educated if necessary and supervised if necessary. At the same time no one is saying that lost wages , medical expenses and future lost earnings should not be paid if appropriate. What doctors are saying is stop making it like the lottery with pain and suffering awards in the millions of dollars and the process costing upwards of half a million dollars and stretching over five years for plaintiffs to win only 10% of the cases. How strong were those cases if they only won 10%.  The pot of gold at the end of the rainbow for pursuing this litigation is so lucrative that the plaintiffs attorneys pursue that 90% of garbage in the hopes that they win. If these cases had merit the plaintiffs would have a far better success rate.  The cost of those other 90% of cases is what is raising the costs of care for us all

      • Payne Hertz

         I find nothing more repugnant than this idea that people who have been killed or injured for life by an act of medical negligence have won some kind of “lottery.” How anyone can believe such a person has “won” anything is beyond me, but it’s a measure of just how far some people will go to demonize the victims of medical negligence. The idea that there is some pot of gold at the end of a rainbow is completely false. Very few victims get awards over a millions dollars, and the median payout for malpractice is between $100,000 to $200,000 in most states…hardly a king’s ransom. Insurance companies typically pay out far less than what juries award, a fact that is never mentioned in all the propaganda about mutli-million dollar jury awards.

        There is no legitimate reason to deprive the victims of malpractice of their constitutional right to a civil trial by jury, and special malpractice courts are just another attempt to do just that. The benefits of such courts for the insurance companies are obvious: they can use their power, money and influence to insure that only judges favorable to their interests sit on such courts, which would be far easier than subverting state supreme courts as they currently do. I suspect such a system to function much like the workers compensations system, which is plagued by unholy amounts of insurance company fraud and malfeasance which is rarely if ever challenged by the hack judges used to preside over these cases.

        The airline industry is safe because there is accountability in the airline industry. There is a severe lack of accountability in the medical profession and that problem has only been made worse by tort reform.

        • Anonymous

          I think he was clearly referring to plaintiff attorneys…..and you are naive if you think lawyers are not fueling this madness. I know. I see their ads all the time. 

          • Payne Hertz

            By similar reasoning, we can conclude that lawyers are responsible for murder, rape, divorce, child custody disputes, defective products, copyright infringement and ten thousand other things they are called upon to litigate.

            The reason there are so many malpractice attornies out there who can afford to advertise on television is that there is plenty of malpractice to keep them in business. The safety record of the American medical system is utterly appalling, and that is how these guys are able to afford to stay in business.

          • Anonymous

            Again, he said plaintiff attorneys are responsible for the malpractice crisis NOT the medical injury itself. Bad analogy my friend. 

        • http://www.facebook.com/people/Steven-Reznick/100000549195050 Steven Reznick

          90% of the cases brought to trial are lost by the plaintiff . Before they get to trial there is 5-7 years of heartache, $250-$500K dollars in legal expenses , time taken away from your practice to defend yourself at hearings with your insurance companies adjustor, depositions, non binding mediation, pre trial mediation, meetings with expert witnesses for the defense and of course trial. Where true negligence has occurred and errors harm individuals no one is saying that the individual should not be compensated fairly and the injuring party subject to corrective actions. I am saying that the decision by an insurer to settle for the policy limits is simply a business decision and has little to do with the facts just the risk of losing in front of an under educated non medical jury. As a society the cost of defensive medicine is breaking the system and denying access to care for many. I can afford those increased costs to provide care to my family and loved ones?  Can you?

          • Payne Hertz

             90% of the cases brought to trial are lost by the plaintiff . Before they get to trial there is 5-7 years of heartache, $250-$500K dollars in legal expenses , time taken away from your practice to defend yourself at hearings with your insurance companies adjustor, depositions, non binding mediation, pre trial mediation, meetings with expert witnesses for the defense and of course trial.

            Whose fault is that? Insurance companies routinely stonewall tort cases in the hopes that the victims or their lawyers will give up or even die before the case is resolved. insurance compaines can afford to play the game of winning by attrition. Someone who is disabled by malpractice and has to put food on the table doesn’t have that option so this is one way to force people to accept lowball settlements. The solution is to force these cases to be resolved in a timely manner.

            Where true negligence has occurred and errors harm individuals no one is saying that the individual should not be compensated fairly and the injuring party subject to corrective actions.

            How do arbitrary caps on damage awards constitute fair compensation? Thy are a violation of the patient’s constitutional rights.

            I am saying that the decision by an insurer to settle for the policy limits is simply a business decision and has little to do with the facts just the risk of losing in front of an under educated non medical jury.

            If that is the case, how do you explain that only 2 percent of people who suffer a death or injury from a medical error ever sue? If it was that easy, the cost of malpractice would be in the hundreds of billions. Few lawyers will take a case where there isn’t a strong chance of winning, because the cost of litigation is enormous. If you have a weak case no insurance company is going to settle because they know no lawyer is dumb enough to waste his money on a losing case. They will settle when they know the lawyer has a chance to win.

            As I mentioned, even the General Counsel of the American Tort Reform Association admits that frivolous malpractoice suits are rare due to the extraordinary costs of litigating them.

            As a society the cost of defensive medicine is breaking the system and denying access to care for many. I can afford those increased costs to provide care to my family and loved ones?  Can you?

            First of all, it has never been proven that defensive medicine is driving up the cost of medicine, and in fact, in some ways this assertion has been disproven. Secondly, defensive medicine is fraud by definition under medicare rules and probably that of most insurance companies. There is no excuse for doctors committing fraud and doctors who do so should be disciplined.

            The real driver of costs is greed fed by overutilization of services and monopoly rents. Texas has enacted the toughest tort “reform” laws in the country, and it is now near impossible to sue a doctor for negligence in Texas. If the “defensive medicine” argument is correct, we should be seeing medical costs decrease in Texas. Instead, Medicare costs for outpatient services and diagnostic testing in Texas have increased at a rate 1/3 higher than the national average. Doctors and hospitals, freed from liability concerns, tend to engage in more testing and risky procedures. Since tort reform was enacted in 2003, Texas has come to lead the nation in physician self-referrals for imaging and other tests.


      • Anonymous

        The Department of Health Quality Board for each licensure board field something like 18,000 total complaints against providers of all kinds in my state. They don’t investigate billing or late medical records requests or grouchy provider complaints. But everything else is fair game. Unlike the NTSB, where there are sentinel events that can be evaluated to be where human and systems errors came into a play on a certain day that everyone can see the replay of, the Quality Assurance Board can get complaint from a patient that their doctor didn’t look in their ears but diagnosed them for an ear infection and gave them an antibiotic or that their doctor smelled of alcohol or a doctor refused to answer a question they asked about a medication because “there wasn’t time” or a hospital looking to get rid of its more experienced and more expensive nurses can end run the union by scouring their charts and finding that they failed to document several non-critical BP checks or PRN tylenol or neurochecks on several different patients to create the appearance of a pattern of documentation problems to create a problem with their license. Any of these things must be investigated and can take and take an average of 8 months to come to resolution in this state and require an attorney. This is because there is a 2 tiered system in which first state bureaucrats deal with the material and then present it to Board members who are providers in that field who could quickly triage the cases in pairs for their merit and make a recommendation to the Board as to whether they should be investigated.  This would potentially save many providers 6 months of unendurable torture waiting to see if they are facing a professional apocalypse that makes malpractice look like a picnic.
        I agree that an administrative system like the NTSB makes more sense, but in this state the state presumes the provider, from doctor to nurse, regardless of the type of charge, regardless of how long they have been in practice with a flawless record to be basically guilty, until the evidence against them falls through. It is like the description my mother gives of parochial school.

    • http://profile.yahoo.com/R4QW5RHIJEEG5OQFPL6B37D6BM Barack Hussein Obama

      I think the baby and bathwater both need to be dumped out.  Only trained professionals who understand the comlexity of medicine ought to sit on juries, similar to patent cases.  We need to rid the system of charlatan lawyers who play on the ignorance of undereducated lay people in order to win a big buck.  It is amazing that all professions police themselves except lawyers.  The system is a joke and needs to be revamped completely.  So por favor, take the baby, bathwater, soap, and sponge bath, and, you know the rest.

      • http://twitter.com/VanessaObRN VanessaObRN

        “Only trained professionals who understand the comlexity of medicine ought to sit on juries”,

        Then it should follow that only women who understand the complexities of sexual harassment by virtue of being victims, ought to sit on rape case juries.

        • Anonymous

          Why? Men do not get sexually harassed?

          • http://twitter.com/VanessaObRN VanessaObRN

            OK, I’ll be consistent.  The next time a woman is brought up for sexual assault against a man, she should be tried by a jury of male victims.

          • Anonymous

            You are correct…..which is why our “jury of your peers” system of trying cases is a joke. Did you ever listen to the jurors from the OJ Simpson case? They were hyper vigilant about everything but the DNA evidence. Juries like that cannot intellectually grasp the science of medicine. They are just fodder for lawyers looking for a buck.  

  • http://www.facebook.com/jillp.mcmahon Jill P McMahon

    Actually, I see this example as a great argument for why more autopsies should be done. They provide info for the doctor(s), hospital, patient’s family, and the legal system, if need be.Lately, there has been some media attention on why autopsies are important (i.e. ProPublica/Frontline collaboration aired on PBS).

  • Anonymous

    In this case, though, you seem to be arguing (and I think I’d agree with the info given) that a choking death wouldn’t really have been preventable or anyone’s fault either.  It just happened that the autopsy came up with a much more incontrovertible cause of death.

    As for fb’s comments, plaintiffs win a minority of cases because a vast majority are settled — insurance companies just don’t want to “roll the dice” so to speak, in cases where a jury could be swayed by factors such as theoretical commentary (as described above), or a sympathetic plaintiff, or a plaintiff-friendly venue and just settle the case, even in circumstances where it’s pretty clear that the adverse outcome wasn’t preventable or caused by a particular lapse in care (as would likely have happened in the event of a suit regarding a choking death in the above example).

    As for which doctors are sued, the above factors come into play as well.  The major determinants of whether or not you are sued are, on the whole, where you practice, what specialty you practice, and the practice setting in which you work.  The reality is that a physician practicing obstetrics at an academic center in a large northeastern city is far more likely to be sued than a physician doing family practice in the rural southwest (even though these two physicians could actually have very similar practices in terms of procedures, numbers, patient demographics, etc.)  Yes, there are a handful of “bad” doctors out there, but the vast majority of physicians who are sued are not “bad” doctors, and the current malpractice system isn’t an effective way of handling the issue.

  • Anonymous

    It’s sad to hear that this patient had a rare and fatal complication, but good that the autopsy cleared the physicians and nurses involved.  Even if the patient had choked on her dinner, though, I don’t think the staff could be blamed.  It is not standard practice to give “soft dysphagia diets” just because a patient is over a certain age or suffered an MI.

    • http://profiles.google.com/grwaitemd Glenn Waite

      Prevention is better than cure. The problem likely comes from the way ICU’s and CCU’s are set up. They keep physical medicine and rehabilitation specialists along with physical therapists, occupational therapists and speech therapists away from the ICU’s and CCU’s. Just going into a hospital and going to any room (regular medical or surgical or ICU/CCU) a patient looses skeletal muscle mass and strength. The loss is greater in ICU/CCU patients. The amount of skeletal muscle mass lost is directly proportional to the the risk of aspiration. The solution is that a patient does not have to loose skeletal muscle mass when they go into the hospital including a ICU/CCU bed.

  • Payne Hertz

    “But this case never went to litigation.”

    Then why mention it? it is likely the case never went to litigation because a malpractice attorney recognized it had little chance of winning.

    “Frivolous” lawsuits are a myth. Even Victor Schwartz, General Counsel of the American Tort Reform Association states that:

    “It is “rare or unusual” for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring, said Mr. Schwartz. “Frivolous” claims tend to be made against small businesses as an effort to leverage a settlement rather than in medical malpractice cases…”


    A recent study of medical malpractice claims puts to the lie to the idea that most claims are baseless.


    “Using randomly selected claims from five insurance companies, researchers found that most involved serious mistakes, such as delayed diagnosis or a medication error. More than 80 percent of patients suffered serious physical injury; in 26 percent of cases, the patient died. Overall, 63 percent of claims were judged to be the result of a preventable error, while 37 percent were not, although researchers noted that some of these were close calls.

    And in 27 percent of cases where researchers found medical error, plaintiffs received no payment.”

    Despite statistics like this the conviction rate in Federal courts is close to 85 percent while it is only 5 percent in malpractice cases, yet you see this as evidence the civil court system is somehow unfair to doctors. Most people with any objectivity would see the opposite. If you’re going to kill someone, do it while wearing a white coat.

    If there is anyone trying to “game” the system, it is the Tort Reform movement and its exponents, who are trying to rob American citizens of their rights to a civil trial under the Seventh Amendment. Attempts by hack politicians to legislate this right away are unconstitutional and have been declared so by several state supreme courts.

    I would strongly urge anyone interested in the facts to see the documentary “Hot Coffee” and learn the lengths to which the Tort Reform movement has gone to subvert democracy and the constitution in this country, even bringing “frivolous lawsuits” and false claims of corruption against judges that are deemed to be not business-friendly enough. It particularly exposes the propaganda used to demonize tort victims as money grubbing leeches preying on innocent doctors and businesses.

  • Anonymous

    The point of the article is well taken. Particularly when there are great sums of money involved – such as, brain damaged baby cases (where the damages run to millions of dollars) the Defense will settle rather than risk the judgment of a lay jury who do not understand the medical complexities.  They care whether the doctor did something wrong … but not enough to change their decision about payment.  There are other inequities; 80% of cases that go to trial are found for the defendant doctor or hospital. I have personally been involved (as an emergency medicine expert witness) in cases where the egregious negligent behavior of a physician harmed a patient, yet the jury found for the Defense. I have also seen doctors practice extraordinarily well, within the standard of car, and although the patient’s poor outcome was no one’s fault (we all die eventually….) there were jury verdicts for the Plaintiff. It seems that often the medical complexities involved in cases are beyond the reasonable scope of a lay jury to fathom.  Of course, this doesn’t impact on our “justice” system…

  • Anonymous

    unfortunately this issue is like vaccines and autism. the people that need to hear the message will never be willing to listen (as evidenced by those with an axe to grind who make numerous angry, anti-doctor comments on articles like this).

    as for me this issue is becoming less and less relevant. as i continue to gradually cut my clinical hours to zero, the fear of frivolous lawsuits goes down. can’t sue me if you never saw me in the first place. if however you need a life saving intervention in my neck of the woods, there will be one less doctor to provide it for you. best of luck with all that.

  • http://profile.yahoo.com/R4QW5RHIJEEG5OQFPL6B37D6BM Barack Hussein Obama

    Frivolous lawsuites are myth? Please… what planet are you from.  The whole country is looking for any opportunity to sue and win the jackpot.  Why work if you can sue.  

    Lawyers are out for a big buck in the disguise of “patient safety”.  

    Get a clue my friend.

  • http://www.facebook.com/people/Steven-Reznick/100000549195050 Steven Reznick

    It would have been instructive and educational if under the new Affordable Health Care Act ( ObamaCare) a few demonstration projects had been set up using the NTSB model of investigation of poor outcomes with a few schedule of awards for the injured pre defined based on the injured parties age , education, current employment status, current and future education. Then we would actually have some real data on what happens to the cost of defensive medicine if the institutions and practitioners aren’t set up like ducks on a pond in hunting season

  • http://www.facebook.com/people/Jason-Simpson/100001631757606 Jason Simpson

    The real problem is not plaintiff lawyers, but hired gun whore expert witnesses who will say anything in court for $$$$.

    Consider this:  a typical doctor gets paid 10 times more per hour doing “expert” testimony compared to clinical practice.  Its an ENORMOUS incentive to lie on the stand.

    Consider this:  the American Trial Lawyers Association (I refuse to call them by their new name, the American Association of “Justice”  LOL) puts out a monthly magazine.  In the back of that magazine is an advertisement section.  Guess which profession has the vast majority of those ads?  Not lawyers.  Doctors.  Doctors advertising their services as “expert” witnesses is by far the #1 ad group in that magazine.

    Our system is flawed when a hired gun expert whore gets paid 10 times more money to testify in court over treating patients.

    • http://twitter.com/VanessaObRN VanessaObRN

      ‘The real problem is not plaintiff lawyers, but hired gun whore expert witnesses who will say anything in court for $$$$.’

      So when a hired gun witness testifies for the defense, aren’t they capable of being “liars and whores” too?

    • Anonymous

      Agreed. Get rid of the “jury of your peers” chicanery and there would be no need for $500/hr+ “expert witnesses”.

  • http://www.facebook.com/profile.php?id=1209930210 Denise LaChance

    The same problems with the civil litigation system that are “unfair to physicians” are unfair to everyone who is litigating something that is likely to be misunderstood by or too complex for a typical jury.  Patent holders, parties to complex business litigation and even employers sued by employees are all affected by how much it costs to defend a lawsuit even if it unfounded. While there is plenty of room for improvement in the system, some physicians seem to believe that physicians should be exempt from a system that everyone else who engages in any kind of business or other public activity in our world must deal with.  Many people are sued who should not be sued and many people who have wronged others are not sued. This is true for physicians and non-physicians alike.  Perhaps physicians who feel aggrieved by the system could join forces with others who wish to see improvement in it rather than seeking special exemptions for themselves.  This could result in more fairness for everyone.

  • Thomas Cox

    While I agree with the last paragraph, in that a physician may get a more fair trial if the jury was composed of other physicians who better understand medicine,  that is not the point of tort reform.  Currently if a physician is going to be sued the case has to be taken by a plaintiff’s attorney who will only get paid anything beyond expenses if he/she wins the case; if the case is lost the dozens or hundreds of hours the attorney puts in go uncompensated.  On the other side is a physician or other health care provider with millions of dollars of insurance money at its disposal and an army of experienced attorneys to defend the case.  As noted below, the unequal aspect of a med mal case is repeated in any common law or civil law case; there are no rules as with criminal litigation.  I believe out tort system is unfair and unequal, but not because physicians and health care providers are at the mercy of unscrupulous plaintiff’s attorneys.  The money difference between the two sides negates this argument.  What is needed is a fairer, quicker, less expensive and more balanced way to compensate patients who have been genuinely injured by the actions of a health care provider…and something such as a worker’s compensation-type system comes to mind, as imperfect as it might be.  But if physicians truly are at the mercy of plaintiff’s attorneys, why do over 80% of medical malpractice claims close with no payment to the patient and why to physicians win over 80% of the time at trial?

    • Anonymous

      Because real malpractice gets settled. Trust me hospitals do not want the true malpractice cases discussed in the community. It will hurt the bottom-line ($). 

      It is the dubious, or at best equivocal cases, that are taken up by plaintiff attorneys hoping that they can roll the dice in front a “jury of our peers” and hit the jackpot. 

Most Popular