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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  • http://blog.stevenreidbordmd.com/ Steven Reidbord MD

    I hope the doctor who signed the affidavit of merit wasn’t a psychiatrist. We hardly need more reason to be unfairly denigrated. Why not stop with the entirely sensible idea that merit should be attested to within one’s specialty?

  • Thomas D Guastavino

    There is NOTHING more to add.

  • FriendlyJD

    “[T]he right of access to the courts is an aspect of the First Amendment
    right to petition the Government for redress of grievances.” Bill Johnson’s Restaurants, Inc. v. NLRB – 461 U.S. 731 (1983). People have a constitutional right to sue, as long as the purpose isn’t
    improper (i.e. harassment). As much as I agree too many people are too
    quick to sue and too many lawyers are too quick to take meritless cases, getting sued is a cost of doing business – in all businesses, especially those that entail a high risk of injury.

    Your money was well spent because your case was dismissed. Any sort of tort reform will only serve to either limit the damages awarded or the types of cases which survive past the filing stage. It wont do anything to stop the legal fees that arise when someone files an action. Trust me, no one loves unexpected fees – whether they be legal or medical.

    (For the record, I am not plaintiff’s attorney and don’t pratice med mal)

  • JR

    As long as the public sees reports of doctors who were willfully harming patients and nothing could be done to stop it – they weren’t charged with criminal charges, their licence wasn’t revoked, or it was revoked and they just moved to another state and started harming more people….

    The public won’t support tort reform.

    We need much stronger measures to take care of those who should not be practicing along with support for doctors who are doing their best. Both are currently serious problems with our legal system.

  • NewMexicoRam

    I know the feeling.
    The only thing needed in tort reform is this: “loser pays.”

  • doc99

    Seen on Twitter: Liability Reform IS Healthcare Reform.

  • JR

    Sample Case: The Rotenberg Center

    Claim: “Andre was asked to take off his jacket. When he refused, staff electric shocked him and he tried to hide under a table. They dragged him out and tied him facedown to a restraint board where he was kept for seven hours without a break, and shocked a total of thirty-one times. In court, it was admitted that all but one of those electric shocks were for tensing up or screaming.”

    Of course, I instantly think that this is a criminal case and there should be criminal prosecution. It was caught on video.

    But there is no criminal case. They are up and running and still torturing disabled patients in their care. The device they use may end up being banned by the FDA.

    So what IS happening with this case? A lawsuit. Because that’s all we have.

    Until these cases are being prosecuted to the full extent of the law, until patients are being properly protected by the criminal justice system… only then can tort reform happen.

  • Eric Goldberg

    Tort reform on a national level will never happen, and the reason is simple: the trial lawyers are simply far too politically powerful and connected. They’ll never allow it. For those who don’t know, trial lawyers are the single largest monetrary contributor to the democratic party, bigger even than unions. Look it up. Tort reform has been left out of the health care reform discussion in Washington deliberately, and that is the reason why.

    Anyone who understands the nature and mechanics of politics knows that politicians never bite the hand that feeds them. The tort bar is a golden goose for Washington politicians. We as physicians comparatively are low-hanging fruit, politically powerless and unpopular with the public at large. Those waiting and hoping for national tort reform shouldn’t hold their breath. While I agree with all the author’s points, and certainly tort reform would decrease the overall costs of healthcare in this country, ultimately this argument is an exercise in futility.

    • NewMexicoRam

      And too many physicians feed the Democratic Party.

  • Karen Ronk

    I know what you are saying first hand. Having suffered completely preventable complications from surgery, I discovered that my doctor is an “expert witness” or treating patients for every large legal group in town. This is why I just shake my head when I hear doctors groups complaining about tort reform. The collusion is disgusting and THAT is what should be reformed.

  • Rudy P. Briner

    We all would like to be able to treat everyone. We all hate insurance,(legal expense of lawyers on both sides) especially that dreaded coverage of future medical costs and its estimation. Grand Bargain: Universal plan to cover everyone paid for by removal of the “future medical” from every single liability policy that is written in the USA. I think the balance would be very positive. Devils in the details esp. related to state insurance boards?

  • http://hautuconsulting.com/ Shane Irving

    Yes, Tort Reform is desperately needed but as others have stated Politicians won’t bite the hand that feeds them. Sad but true…

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