Medical liability reform: the federalism problem

by Walter Olson on May 24, 2011

It’s quite real, I argue at Cato at Liberty — and I try to draw some distinctions as to ways Congress could usefully address liability without inserting itself into the proper business of the state courts. More: Adler, Volokh; Reynolds, Instapundit, Turkewitz, Childs/TortsProf, Beck/Drug & Device Law.

{ 3 comments }

1 Ron Miller 05.24.11 at 3:18 pm

Intellectually honest. Bravo.

2 William Nuesslein 05.26.11 at 9:51 am

I agree with Ron Miller above. Doesn’t that ridiculous $322 million hit on Union Carbide by a Mississippi jury violate the due process guarantee of the 14th amendment?

3 Donna Baver Rovito 05.29.11 at 11:01 am

I’m leaning more and more toward the establishment of specialized courts to deal with medical liability issues. The current system, even WITH caps on pain and suffering, doesn’t benefit anyone other than lawyers.

Successful plaintiffs get only about 46% of verdicts or settlements after the lawyers take their cut. Genuinely injured folks who aren’t sympathetic enough or who won’t generate a big enough contingent fee can’t find lawyers to represent them. Doctors and hospitals “win” over 80% of court cases, but since they’re spending in excess of $100,000 each in legal fees and losing time with patients to defend themselves, there’s a very real cost in both dollars and emotional distress to “winning.”

The knowledge that defending one of its clients in court will cost them at least $100,000 prompts malpractice carriers to urge doctors and hospitals to settle on smaller claims despite lack of evidence of negligence. Juries must decide who to believe based on a variety of factors, including which lawyers and expert witnesses put on the best show in court – because it’s simply impossible to teach a jury enough medicine during a one or even two week trial to genuinely know the difference between standard of care and BREACH of standard of care.

Patients receive short shrift while their doctors are in court defending themselves, many times when they haven’t even treated the patient who’s suing them or their group. Doctors practice defensive medicine for fear of being asked on a witness stand: “Doctor, why DIDN’T you order a CAT scan which might have saved my client’s mother’s life?”

And young people who might have made brilliant surgeons or diagnosticians are looking toward other career choices instead of taking their chances on medical careers filled with litigation fears. (Heck, I’ve been trying to talk my college junior out of being a surgeon like Daddy since he was FOUR – no luck, though….)

Capping awards is merely a stopgap, and while it would help to lower premiums, and I WILL support it for now, it won’t solve the underlying problem with the entire system of medical “justice” as we now know it.

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