Wednesday, March 26, 2003

MedPundit has posted an article about "medical malpractice insurance" -- that patients pay.

Put to the side my suggestion below (and I still maintain that would stop 40% of the suits -- even extremely valid ones -- because people tend to trust their doctors), I think this is a fine idea -- so long as it doesn't let doctors who are seriously negligent off the hook. I don't see why one shouldn't be able to insure oneself from a careless doctor; what I oppose is shifting the burden off a doctor who deeply messes up, onto the person upon whom the [expletive]-up was worked. I also view medical malpractice law, like most aspects of our law, from a certain punitive angle: If the doctor messes up often enough, badly enough, and no one will yank his license, then maybe he should be forced out of business? Just a thought.

I know all of the arguments for tort reform, and I'm sympathetic to them. I'm not against minimum damage limits for medical malpractice cases (i.e., there must be a certain, grievous level of damage before a suit can be brought). I'm not against capping punitive damages, so long as there's an inflation adjustment built in ($250,000 is a big deal now; in thirty years, that'll be the cost of a cab ride). But the idea that runaway juries destroy the careers of doctors who did nothing wrong, on frivolous claims -- well, let's just say there's more myth than truth to it (although there's undoubtedly some truth, too). Trust me on this, I know: Plaintiff's lawyers cannot afford to take medical malpractice cases unless they're good ones, by which I mean there's something deeply wrong, the client got badly injured, and it really looks like the doctor screwed up, big-time. I know of one litigation -- that settled just before trial! -- where the costs, not including attorney fees, exceeded $150K. That's photocopies, depositions, postage, FedEx... Point is, I think some of the call for tort reform is overblown.

Which is why (to get back to my original point) I'm leery of burden shifting. If it's a real med-mal case, someone got badly hurt, and I want the doctor who did it to pay.

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