Do-It-Do Yourself Tort Reform

By JEFFREY SEGAL and MICHAEL SACOPULOS

July 12, 2007; Page A15

What do you call a surgeon who wears a suit? A defendant. Its an old joke, but at any given moment in the U.S., approximately 60,000 medical malpractice suits are being tried, many involving multiple physician defendants. Thats roughly 10% of the physician population. And once a physician experiences the legal system, it can scar him permanently.

Its not hard to see why. Though the medical tort system is designed to deter unsafe practices and to make negligently injured patients whole, it does neither. Nor does it prevent a high frequency of frivolous lawsuits.

In response, doctors and medical associations have sought relief from lawsuits for years by trying to get tort reform passed at the state and federal levels. Such reforms have solved some problems, but often at the expense of exacerbating others.

For example, while some states have enacted reforms which limit certain types of damages to plaintiffs, this has done little to stem the tide of frivolous law suits. In California the tort reform poster child an obstetrician will pay $30,000 to $50,000 annually in liability premiums, as compared to the $170,000 obstetricians might pay in certain areas of New York. Yet doctors are actually sued more often in California than in other states, in part because tort lawyers have sought to compensate for decreased payments by pursuing a greater number of claims.

Another tort reform "success story" is Louisiana. The states dominant malpractice insurer recently reported it spent more money on defending claims than on settlements and judgments. Why? Because Louisiana mandates the use of a screening panel before a lawsuit is filed. Annually, for every three physicians, one claim is made to the panel (a claim frequency that is among the highest in the country). The winner, usually the physician, is forced to pay the cost of the panel. So, the winner does not really win. He just loses less.

In 2002, we launched Medical Justice, a membership based organization designed to complement tort reform and to head off frivolous lawsuits. Medical Justice pays the bills and provides the services to file countersuits against all proponents of meritless lawsuits.

Our service has two principal components. First, we look at the quality of so called expert witness testimony. Behind every frivolous lawsuit there is an "expert" usually a physician skilled in testifying before juries and often compensated to the tune of $10,000 dollars a day. Put bluntly, many of these "experts" are frauds, as this newspaper has repeatedly shown in cases regarding asbestosis and silicosis claims.

In a recent case we dealt with, an expert witness detailed how a urologist had botched a vasectomy, even though routine postoperative sperm counts were, as expected, zero. Nonetheless, the patients wife became pregnant.

A lawsuit gathered momentum based on an expert supporting the least likely hypothesis: surgical error. To almost no ones surprise, a paternity test performed many months later solved this elementary mystery, and the case was dropped. But the urologist took little comfort in being exonerated. Too little. Too Late.

Medical Justice deals with the problem of frivolous or dishonest expert witness testimony by relying on the 2001 case, Austin v. American Association of Neurological Surgeons . There, the Seventh Circuit Court of Appeals upheld the right of medical specialty societies to police their own members. Many of these societies have panels to review the quality of medamal testimony.

If an experts testimony is contrary to what a majority or respectable minority in the field would state, that record may translate into an ethical violation, potentially leading to discipline or even expulsion. Such discipline diminishes an experts credibility in future cases.

Medical Justices second tool is a patient physician contract. That contract states that in a legitimate dispute, both sides will utilize only those experts who belong to such societies and who strictly follow their code of ethics. This limits the list to reputable and accountable physician experts, thus precluding the use of hired guns or medical "witnesses having other rational explanations" better known by their acronym.

By using contract law to define and enforce reasonable rules, the courtroom becomes less dramatic and more truthful. Virtually all of our patients have been comfortable signing this contract and participating in this process.

Does it work? Yes. After five years of collecting data, we know that Medical Justice plan members are sued at a rate of under just 2% a year. The average doctor is sued at a rate of 8% - 12% per year. And the company is top heavy with physicians in "high-risk" specialties.

Further, when meritless cases are filed against plan members, generally theyre dropped quickly. In Ohio for example, most "intent to sue" letters historically evolved into lawsuits.

When a Medical Justice plan member receives an "intent to sue" letter, the plaintiffs attorney is notified that the defendant has the will and the funds to countersue. The result is that only 20% of the letters mature into bona fide lawsuits.

Finally, the system works because we back our words with deeds by taking action against proponents of frivolous suits. In a sense, Medical Justice has created a contract-based "loser-pays" paradigm. We have helped over a thousand physicians who are tired of being victimized by a system that doesnt prevent collateral damage.

None of this is to say that we dont have a real and sizable problem in this country with patients who are negligently injured, or who die on account of preventable medical errors in the course of their medical treatment. But we cant begin to adequately address the problem of patient safety until we clear the dockets and cut the costs which are wasted on meritless claims and the much larger derivative costs of defensive medicine.

Our legislators have tried and been unable to solve these larger problems. Micromanaging tort reform has proven to be little more than a game of legal whack-a-mole. Its time we give private initiatives a chance to work.

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