Tort reform should not be controversial

I’ve been in the medical malpractice arena many times, and always walked away unharmed. If this system were presented in front of a fair minded and impartial jury, it would be dismantled. Sure, there are positive elements present, but they are dwarfed and suffocated by the drawbacks. The self-serving arguments supporting the current system are far outweighed by the financial and emotional costs that innocent physicians unfairly bear. Tort reform should not be controversial.

Beyond the medical arena, who wants to defend the crushing volume of litigation in the United States? Let me be bold. I think we have too much litigation and fear of litigation in this country. Put that item up for a vote anywhere in the country except at an American Bar Association convention, and you don’t need to be a soothsayer to predict the outcome. You just need to be breathing.

About two years ago, I was sued months after the death of a patient for whom I provided appropriate care. Being sued is not a lonely process. I was among many defendants, including several doctors, a hospital and other corporate entities.

I reviewed the medical record and reached two conclusions:

  1. My care was appropriate and proper.
  2. The record documented the above.

In the medical malpractice arena, it is much more important what has been documented than what has been done. Meditate on this statement for a few moments.

The complaint against me didn’t offer a single specific allegation of a breach of my care. Instead, there was a general statement, which was used against every defendant, that we were negligent. My attorney also could not divine from the complaint an actual allegation against me. Isn’t there an obligation to state to the accused what the alleged negligence is?

In Ohio, a physician not involved with the case must sign an affidavit of merit swearing that there is a reasonable basis that malpractice occurred before a case can go forward. While this sounds like a filter, it functions as a sieve. Shockingly, this single physician swore that every physician deserved to be sued. I suspect that if a hamster were sued, that this doctor would have put the little varmint in the dock also.

Many of these physician “experts” earn a substantial portion of their incomes by serving trial attorneys. Anyone spot a conflict of interest here?

The case was dropped against everyone, presumably as the plaintiff’s attorney couldn’t find real experts to support the claims of negligence.

I thought I was in the clear until the case was refiled a few months ago. My attorney petitioned the court to dismiss me as the physician who signed the affidavit of merit was not in my specialty. The court agreed. For all I know, this doctor may have been a psychiatrist.

What a system. Consider that I’m only one defendant who was drawn into the legal labyrinth. My malpractice carrier informed me it cost $11,750.22 to defend me, and my case never even reached the discovery phase. How’s that for money well spent?

I wonder what the financial costs are from all of the unnecessary litigation that our country endures in a year. Probably, enough to truly reform the health care system. Hey, this gives me an idea …

Michael Kirsch is a gastroenterologist who blogs at MD Whistleblower

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