If our medical malpractice tort scheme were a patient, its condition would be critical. The system is ailing, and rather than treating it with an eye toward long-term solutions, the fixes have been quick: emergency insurance, caps on damages.
All avoid the basic question: How can our dysfunctional tort system be fixed?
In theory, negligent care resulting in injury should be reasonably compensated, with oversight provided by impartial courts. Liability insurance would protect doctors and hospitals from ruinous judgments, and be affordable.
Injured patients would submit claims based on legitimate issues of care. Rates of litigation and insurance premiums would be equitably distributed nationwide.
In truth, our current system perverts these goals: everyone loses. Studies have confirmed that the large majority of lawsuits are brought by plaintiffs who have not suffered injury as a result of negligence, and the large majority of actually injured patients never sue.
We propose an alternative mechanism: medical tribunals based on a no-fault system.
Many genuinely injured patients who are now turned away by law firms could then be justly compensated. The benefit to physicians and hospitals is clear: If no-fault need be ascribed, medical systems and delivery of care are subject to openness, improvement, and refinement.
Our current tort system has served as neither a deterrent to medical negligence nor a means to render just compensation to the deserving.
Let's give prospective plaintiffs an option out of traditional litigation with its cost in dollars, time, and emotion. Injured patients deserve a quicker and more equitable outcome.
Medical tribunals, supported by insurance carriers authorized to pay scheduled awards for foreseeable less-than-ideal outcomes, are the answer.
Making Lawyers Rich
Escalating liability premiums and multimillion-dollar judgments have caused doctors to flee, drug companies to eschew potentially lifesaving but risky new drugs, and entire industries to enter bankruptcy. Useful products have been withdrawn, costs passed on to consumers, and trial lawyers have become yachtsmen and team owners, financing new fronts in "Litigation Inc." campaigns.
Our economic vibrancy, consumer product innovation, and access to healthcare are endangered by predatory litigation. Some form of impartial adjudicatory body must be established to screen out the most heinous frivolous litigation. Tribunals must be consulted early enough in the process to avoid the dissipation of economic resources.
(We must note here that even in crisis-ridden Illinois, 80% of the med-mal lawsuits result in no payments to plaintiffs but by then it's too late to save millions of dollars in litigation costs.)
New York tried similar panels in very diluted fashion in the 1980s. They were almost powerless, serving only to lengthen the process, and in effect increased litigation costs. It was, however, a seminal attempt at taking some fact-finding out of the hands of lay jurors by offering a nonbinding recommendation on a case's merit.
If our proposed medical tribunals were implemented, they would meet specific criteria concordant with local custom and practice. Even within these strictures, the expectation of some degree of uniformity and rationality would lead to these benefits:
Major cost savings as a substantial fraction of baseless litigation is headed off at the pass.
Further savings as the endemic practice of defensive medicine "health care" delivered to look good upon subsequent examination, not for any health benefit diminished dramatically.
The composition of these tribunals can be debated, but the principle needs to be established. Tribunals would be composed of people with experience in various fields but not technocrats; good faith and impartiality are the only absolute requirements. They would be committed to rendering judgments free of emotion and beholden to no pressure groups.
Medical malpractice is tough and costly litigation. Plaintiffs' attorneys screen potential cases based on the likelihood of a large award. Many genuinely injured patients never get their day in court. So the winners turn out to be the trial lawyers.
The adversarial system we have now known informally as "shame and blame" encourages doctors and hospitals to cover up, to circle the wagons. Voluntarily airing the actions leading to a bad outcome can irretrievably damage a doctor's career; even expressing sympathy can be used against a caregiver in court.
Injured patients and their families (and lawyers) tend to sue those with the deepest pockets, for as much as the traffic will bear.
The largest awards attach to "bad babies" those unfortunate neonates with severe impairments of physical and/or mental function who are as close to dead as possible, without actually crossing over. The April 4 New York Court of Appeals decision Broadnax v. Gonzalez permits a mother to recover for emotional distress for a stillbirth, completely reversing the tide in this state. Now dead babies are worth something in court.
(Full disclosure: One of us, Roslyn Rosenwasser, was defense counsel at trial in Broadnax, where the case was dismissed.)
Doctors in fear restrict their practices to low-risk patients or emigrate to states with caps on damages. This has led to med-mal crises in various states in recent years, most notoriously in Illinois. NBC Nightly News detailed the sad tale of a woman in her sixth month of pregnancy whose obstetrician was about to take the short trek north to Wisconsin, abandoning her pregnant patients but saving herself about $170,000 in malpractice premiums.
Not coincidentally, while Illinois has no damage caps, Wisconsin does.
Illinois malpractice rates have increased 50% annually the past few years.
What is commonly thought of as "tort reform" is a short-term solution to a long-term problem: the American public's expectation of, and demand for, perfection in an imperfect world. Our proposal deserves serious consideration. Perhaps through this mechanism, the system can be fixed.
The only losers: predatory plaintiffs' lawyers and their acolytes.
Roslyn Rosenwasser Ross is an Associate at Lewis, Johs, Avallone, Aviles & Kauftman LLP.
Dr. Gilbert Ross is medical and executive director of the American Council on Science and Health, a consumer-education public health thinktank based in New York.
This piece originally appeared in Investor's Business Daily.
