January 21, 2005

What About Tort Reform?

Dr. Charles alerts us to an archived editorial on tort reform published in the New York Times. Common Good excerpts the article here. The title of the article is It's Time to Try Special Health Courts. Here's the excerpt:

We hold no brief for the current medical liability system, which does a poor job of compensating most victims of medical malpractice. An authoritative study of thousands of patients in New York State found that the vast majority who were harmed by medical errors or negligence never filed suit, whereas the vast majority of those who did file suit were not actually harmed by negligent doctors. Some studies suggest that, once a suit is filed, the courts do a reasonably good job of sorting out who deserves compensation, while other research has found that juries are swayed more by the severity of a plaintiff's injuries than by evidence of negligence. But in a medical system that is coming under increased fire for failing to deliver consistent quality in hospital care, it is clear that only a small number of people are being compensated for malpractice.

Common Good makes the following observation:

Not only does the current system fail to reliably compensate injured patients, it also fails to weed out bad doctors. The Times recognized the need for a system that effectively "weed[s] out the small number of negligent doctors responsible for generating most malpractice awards."
The Times also recognized the need for consistent damage awards: "Congress ought to consider requiring guidelines for judges and juries to help determine what compensation is reasonable in a given circumstance."


As proposed by Common Good, special health courts would award damages--in addition to a patient's medical costs and lost income--according to a pre-determined schedule established by experts.

Lou Dobbs weighed in on this issue earlier this month, making the observation that limits on damages for pain and suffering may not be enough. He goes on to discuss European systems where the loser pays all legal costs. We have a mechanism for that in Texas via HB4--but it has to be elected.

And, the Bush Administration is gearing up for some national form of tort reform saying that he rejects the idea of state by state tort reform " because he said trial lawyers simply go to the states with the weakest guidelines."

The continuing need for tort reform in the field of health care is exemplified by this article picked up by Dr. Kevin. Dr. Kevin summarizes the case:

Doctor prevails in malpractice case, but was it frivolous to begin with?It was a case of a bronchoscopy for hemoptysis. The patient apparently consented to the procedure, but not the subsequent biopsy that occurred (which is normally routine in these procedures). A damned if you do or don't situation. What if a suspicious lesion was found, but wasn't biopsed? Surely the doctor would have been sued anyways for missing a potential cancer.

What kind of lawyer took this case?