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Political |
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During
this presidential campaign the President’s proposal to end frivolous
lawsuits is best described by the statement "let's kill all the
lawyers and the people they represent too." The President
blames lawyers, and their clients, for frivolous medical malpractice
suits. These suits, according to the President, are driving
increases in medical malpractice premiums and in the cost of health
care. According to the President, these suits are causing doctors
to quit the profession. The
President suggests reforming the system by punishing plaintiffs, the
people who bring the claims against doctors. The punishment comes
in the form of limiting damages individuals may recover in medical
malpractice claims. Capping damages will allow insurers to save
money on paying judgments thereby allowing them to lower their premiums.
The President’s plan will punish lawyers by punishing their clients. The
President is proposing “federalization” of malpractice suits; he
wants the federal government to regulate the claims, taking that power
away from the states. His proposals require more federal
involvement in state matters. The
President is right, we need to enact reform. The answer, however, does
not lie in limiting damages. The answer does not lie in
federalizing medical malpractice claims. Reform must be a
cooperative effort among doctors, lawyers, and the insurance industry.
Reform must originate at the state level. In many states, when a doctor is sued, state law requires the doctor to publicly report that a suit is filed. Doctors are also required to publicly report settlements. This requirement makes settlement of medical malpractice claims difficult--the doctor does not want report that he or she paid money for a malpractice claim. Therefore, doctors, and insurers, decide to litigate the lawsuit. In
making the decision to litigate, doctors and their carriers often hope
to “wear down” a plaintiff by spending money on multiple experts and
requiring the plaintiff to litigate the case to trial. The downside to
this litigious approach, regardless of whether a case has merit, is the
litigation strategy does not include methods to resolve the claim before
trial. In many instances, alternative means of resolving the lawsuit are
not considered by the insurance carriers. There
is an answer to this dilemma, and the answer is not engaging in a
simplistic political blame game, or limiting the damages people recover.
The answer does not lie in increasing federal influence over the States,
allowing the federal government to dictate what is a state matter.
The answer lies in cooperative reform on a state-by-state basis. For
example, each state should examine its reporting requirements in
malpractice cases. States should consider removing some of the
reporting requirements regarding claims; particularly if a doctor agrees
to participate in early mediation of a claim. Mediation
is a tool used to avoid the costs of litigation. Mediation is a
process bringing parties together to discuss settlement of a claim.
Mediation is best described as a peace making process, a process
designed to avoid the confrontation of court litigation. Early
mediation often results in a settlement without the expense of hiring
lawyers and expert witnesses. Mediation is an effective tool in settling
cases, and is a tool underused in medical malpractice cases. One
possible solution to the rising cost of medical malpractice litigation
is the effective use of mediation. This process will save time,
and money. So,
how can mediation save a doctor, and the insurer, the cost of
litigation? Take for example a situation where a doctor settles a
claim in mediation, either before a lawsuit is filed or shortly
thereafter. As an incentive for using mediation, a state may relax
the reporting requirement allowing a waiver of reporting the settlement
if mediation results in an early resolution to the claim. This waiver
gives the doctor the flexibility of settling the case without the need
of protracted litigation. No litigation means saving the costs
associated with the litigation. Lowering the costs of litigation
should result in lower malpractice premiums, and, perhaps, lower health
care costs. Until
doctors, lawyers, and insurance carriers cooperate, politicians, like
the President, will have their way. The end result will be the
same as always--a political solution resulting in a quick fix… and
we all know how well political solutions work. Stuart
F. James
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