Malpractice panel Discussion - post-mortem
I don't have the time to go into a full discussion of last night's (Sept 30, 2004) event. I tried to take reasonably good notes of the discussion from each of the speakers, and I'll try to reconstruct my impressions when I continue this post later on.
My first impressions are as follows:
1. The Maryland Trial Lawyers' Association should be ashamed of itself. Understandably, they stand to lose a great deal if meaningful reform takes place, but their response to the invitation sent to them from the Federalist Society was an exceptionally childish letter.
2. The panelists who showed up were truly knowledgeable in their respective areas, and more than that, they were sincere in their conviction that the current situation is a crisis and meaningful steps need to be taken to prevent this crisis from turning into a catastrophe.Dr. Sobel made an impact unlike the other speakers because he didn't come in as a lawyer or a politician. He was a learned man who is fighting the fight to be able to practice medicine, and the system (in a global sense) is just not supporting him and the rest of the physicians. He provided the statistics and perspective that drove home the point that this issue is actually a crisis, and not just hype from people who don't like the defenders of the little guy, the noble "Trial Lawyer."
As I said, I'll fill in more later, but I want to leave you with a few thoughts. First, one problem is that nobody knows what the actual solution needs to be, and nobody really complained about the "caps" issues. Second, the crisis will resolve itself one way or another. If the problem isn't addressed politically, soon, it will resolve itself by depleting the available medical resources, and healthcare access will evaporate. Third, no one camp is 100% to blame, and maybe that's why a solution is so hard to agree upon. Fourth (and finally for now), the medical liability system does not currently serve its purported purpose. One thing that I think a representative of the Trial Lawyers could have constructively added to the discussion is that until there are systematic changes, lawyers really need to act in much the way that they currently do, because to not seek the best result for your client is legal malpractice (see Section 2 of the Preable), and although this is detrimental to society, a lawyer is not allowed to abandon his client's interests in favor of some societal goal. It's basically a "game theory" type of situation where all the players would do well if all of the players behaved, but if any of the players act selfishly, the selfish actors will reap huge rewards individually, even though the collective is injured.
To be continued...
The first panelist to speak was Al Redmer. As noted below, he's the current Maryland Insurance Commissioner. He's also a former delegate to the Maryland General Assembly. The first thing that he said which was noteworthy, IMHO, was that the med-mal issue is more of a political issue than a public policy one. Also, it doesn't appear that the people of the state are more litigious than before, because the number of claims being made is approximately the same as it has been for some time, but rather, the pain is coming from the fact that the pay-outs have increased substantially, and the problem is in the "economic damages." Towards the end of his portion of the discussion, he rattled off several ideas including annuitizing the pay-outs, or creating a "patient compensation pool."
I like the idea of annuitized payents because it ties the award to the injury, but I don't particularly like the idea of a patient compensation pool. It seems like a way to pay people for bad luck rather than to compensate them for injury suffered as a result of someone else's negligence.
Dr. Sobel was the second panelist to speak. I discussed a little of his presentation above, and alluded to some statistics: Right now, in the state of Maryland there are about 750 Ob-Gyn physicians, but only about 500 of them are currently practicing Ob-Gyn. Shock-trauma centers are not economically viable because they are required by law to take whoever comes to them regardless of ability to pay, and so the ones that are open, generally are receiving direct governmental support. One of the most interesting facts that he presented, or at least I thought it was interesting, was that there are NO neuro-surgeons in the Mississippi Delta region from Memphis to New Orleans.
Another fact he mentioned was that defensive medicine (tests not really indicated, but ordered just to make sure that he can say he did order every reasonable test if he does get sued) is currently estimated to cost the US economy between $70 and $100 Billion.
Walter Olson spoke next. He presented more details of the excesses in the med-mal plaintiff's bar, which I suppose if somebody wants, I can post in greater depth at another time. What stood out about Mr. Olson's discussion was that he presented some realistically helpful ideas.
- Certificates of Merit. If there were some way to guarantee that a med-mal case actually had some merit, before it actually got filed, it might reduce the number of suits. Of course some safe-guards against "jukebox" doctors (Doctors who will sing whatever tune you ask, if you pay them.)
- Daubert. This is the expert/scientific evidence standard used in federal cases. This is probably the easiest solution that could provide some quick results.
- Court Appointed Experts. Right now, jurors who are generally unable to distinguish good science (medicine) from bad are treated to a "battle of experts." that, of course, isn't designed to enlighten the jurors, but to snow them. They are left just as confused as before, and often give sympathy awards to the poor injured/sick person regardless of whether the doctor was negligent.
- Loser Pays. There are some bad ways to implement it, and he sighted the "Florida Experiment" as one. Nevertheless, a well structured loser-pays scheme would strongly discourage plaintiff's attorneys from bringing weak cases.
The sad fact is, and I can't remember who brough out this statistic, 80% of all med-mal cases have NO merit (i.e. no negilgence can be found by a dispassionate review of the evidence by experts), and just as tragically, about 80% of all cases of negligence never result in a any sort of recompense for the victim.
For what it's worth, I liked a number of the ideas... I especially like applying Daubert. If that were combined with loser-pays, and my own addition to the mix, Bifrucated trials (Seperate the liability/negligence issue from damages) then perhaps the issue can really be addressed. Then again, a court appointed expert to review the case and produce the "certificate of merit" could go a long way too.
If you couldn't or didn't make it to the event, shame on you, but I hope my recollections have been useful. Feel free to comment about what ideas you've got in regards to the med-mal issue.