Let's Give Medical Malpractice a New Home

How many readers of this opinion piece will remember the 1970's when California's great medical system virtually shut down? Whole sections of this huge state were virtually without medical care. What was wrong? The insurance companies triggered this revolt by either eliminating the states' doctors from any medical malpractice coverage, or they made it so expensive doctors could not afford the premiums. The Governor called the legislature into emergency session and proclaimed that nobody was going home until this problem was solved. And solve it they did! California's MICRA is in effect to date and is a model being viewed as a possible guide to future national legislation. A good idea!

However, this system is still dependent upon the court system. The court system is too slow to bring cases to trial. It is also largely dependent upon the services of large and expensive law firms when it comes to medical malpractice. Doctors hate open court fights - it is so expensive for them, it is ridiculous. See this list of items:

1. Loss of multiple days of practice and jeopardizing the lives of patients. Losses run to $500-1,000 per day in fees. If the doctor can find a physician to stand in, those costs are very high. The payroll for nurses, receptionists, leases on equipment, etc, etc continues on!

2. Doctors receive no training on how to conduct a case and are at the mercy of attorneys. The attorneys defending his case are almost always new to him, having been hired by the insurance company. The insurance company goes shopping for the best specialist in the area of contention in this case. A second-seat lawyer from their firm is watching the show and preserving the insurance company position. There is virtually no attorney sitting at the table who represents the best interests of the physician. Now you know why doctors don't like to go to trial. Besides the attorneys tend to shred the doctors reputation and standing in the community, also causing problems with his standing in the medical community.

3. By the time the case gets to trial, 2-3 years have generally elapsed, records are generally incomplete, new tests have to be ordered, depositions have to be taken, people have moved and are no longer available to comment in person, additional attorneys have to be hired to go get the out of town witnesses statements and on and on. . . . .

4. The last items here is the bludgeoning doctors take when they are called to testify, or to defend their own actions. Lawyers understand the system and tend to take advantage of the doctors when they are in the witness chair. Hour after hour of grinding through case files to determine if they did it right or wrong is a humiliating experience made worse by the age of the case, lack of complete notes, tests and other data. In the case of a death, no value is extended to the patients desire, or lack of it, to continue living. One example: Among the elderly, if the the pain and suffering is too intense, some of them simply give up and no amount of medical help will save them.

Considering all of the above, what can we do to make a system work that is fair to all, not overburdened with attorneys and insurance company staff, and reasonable for the physician to attend and obtain justice for their own practice? It has been suggested in many other venues that we erect a court system for Medical Malpractice:

1. All medical malpractice claims must be evaluated for fitness to arbitration, (binding or non) and the vast majority of cases will be settled in this less contentious setting. Both sides present their cases to an arbiter who decides the case and makes the offer to the claimant. All death cases and those decided by the initial evaluator to be of such magnitude that a special court needs to hear the case, would be passed on to our special Medical Malpractice court.

2. A special Medical Malpractice court needs to be established, solely for the trial of these type of cases. It seems so logical, I cannot imagine why we do not have them existent in most states. The protocols of the court have been suggested by many well qualified barristers and legal experts. Needless to say this is not new ground, it has been plowed on several occasions. One of the better ideas is to have a regional system of courts covering different states and receiving their cases from the arbiters in the states. Each judge would have to have background in medical work. There are a few doctor and lawyer educated persons. Most are in practice as attorneys. They could contribute to these courts and they need to be evaluated for the judges positions.

3 Suggest that there be one medical malpractice appellate court that hears these type cases before they go to the US Appeals court or the Supreme Court . This is not to lengthen or to make the process more complicated, but to insure that only the most worthy of cases proceed to the other court system.

Surely we can all agree that health care reform and the tort system affectring medical service providers needs to be reformed in harmony with each other. The strains placed on the health care system by legal problems alters the way doctors and patients interact. Unnecesaary tests are ordered, expenses are incurred that are not necessary and detrimental to good medicine. We should be concerned enough to change all systems that affect doctors and patients and strive to right our health care system.