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Thursday, February 17, 2011

Tort Reform: Blame the Lawyers

Here’s an economics question for you: Which do you think contributes most to the rising costs of health care: medical malpractice lawsuits, or medical mistakes? If you guessed lawsuits, you had better guess again. Medical mistakes cause enormous personal and financial damage. Lawsuits don’t recover a fraction of it.

Recently, a 2-year-old girl with a critical strep infection had to have both her feet and one hand amputated because of a five hours wait for proper treatment at a hospital emergency room. This kind of thing happens more frequently than you want to know.

Most medical malpractice passes right by without any recourse. Medical professionals, more than most of us, hate to admit their mistakes. So patients are led to believe that the bad result was not caused by a mistake. Most injured patients never even think of talking to a lawyer much less filing a lawsuit. They just endure their pain and pay the price without complaint. 

“Tort reform” is touted repeatedly today by many pundits and politicians on both the right and left as a wonderful way to cut outrageously rising health care costs. But their idea of “tort reform” has nothing to do with curbing torts, i.e. preventing medical mistakes; but a whole lot to do with curbing the rights of injured patients to seek redress for medical mistakes. “Tort reform” is a buzz label for laws which focus on lawyers instead of doctors. The plain fact, however, is that lawyers don’t make medical mistakes, doctors do.

Tort reform is a good idea, but it shouldn’t come at the expense of the victims of torts. There is plenty of room for reform in all areas of the law, but the focus of “tort reform” should involve prevention of and fair compensation for torts – not the relationship between lawyer and client. It is the tort which causes the damage, not the lawyers’ fees. Making it impossible for most people to seek redress for medical mistakes in a court of law would cut health care costs alright, but squarely on the backs of the hapless victims.

Any good lawyer will tell you that medical malpractice cases are the hardest civil cases of all to win, anyway, no matter how much merit in them. People don’t like their doctors getting sued. They love their doctors and local hospitals. For good reason, the medical profession is still held in very high esteem; much higher, in fact, than the legal profession. So blaming the lawyers is just as popular today as always.

Without big damages and an airtight case on the merits, though, supported by top notch experts with superior qualifications, few lawyers are foolish enough to take on a medical malpractice case. Lawyers won’t find many top notch experts willing to testify against their own colleagues unless they have a very good case.

Frivolous malpractice suits don’t stand a chance in court. A judge throws them out long before any jury is involved. Even when a malpractice case is proved by clear and convincing evidence, juries are just as likely to find no cause for action. Litigation is no cheap picnic for either side.

There are scores of legal and evidentiary barriers to maintaining medical malpractice cases in most states; obstacles which don’t apply to other kinds of torts. It is far easier to prove automobile negligence, for example, than medical negligence, though both occur with frighteningly equal frequency.

Look closely at the specific proposals of “tort reform” advocates and you will see that they care little to nothing about medical mistakes and what to do about them. “Tort reform” is just their way of saying with a nudge and a wink: We want more legal immunity from medical mistakes for our doctors.

It’s not lawyers who create problems; it’s laws.

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