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A simple proposal on malpractice

Posted Aug 19 2011 8:13am
An article this week in the New England Journal of Medicine concludes that there is a high likelihood that most doctors will face a malpractice lawsuit at some point in their careers.  Here's the chart that accompanies the article, showing the percentage of physicians annually, by specialty, who are sued.

Not all suits, indeed a minority, result in verdicts against the doctors.  Nonetheless, the disruption to a doctor's life during a lawsuit is substantial, taking him or her away from care of patients for weeks.  And, as I have discussed, the shame that accompanies these lawsuits -- even when not warranted -- is a searing experience.

Given the power of the litigation bar in state legislatures and Congress, and given the legitimate rights of people to sue for damages when real harm has been done, the likelihood of fundamental change to our system of malpractice law is unlikely to change.  Indeed, other countries -- like Israel -- are seeing a rise in their own malpractice experience as the plaintiff bar learns from the American experience.
If we try to insist on a global change in malpractice laws, we will get nowhere.  It is better to make incremental changes that are in the interest of both plaintiffs and defendants.
In that light, there are ways to improve the flow of these cases that preserve the rights of both sides.  The most sensible and politically feasible I have seen are designed to preclude or quickly eliminate unfounded and frivolous claims.
My favorite is a requirement to impose a notice or "cooling off" period.  This would require a potential plaintiff to tell the targeted doctor, nurse, or hospital of an intention to sue.  During that waiting period, there would be a greater chance that the parties would resolve their differences.  This raises the possibility of avoiding a formal lawsuit and saving the costs and lengthy time commitment by all concerned.
The advantage of this proposal is that all rights are preserved for all parties.  The plaintiff's bar should not object (versus, for example, proposals to limit damages) in that all the other provisions of the law remain in effect.  Indeed, under this approach, plaintiff attorneys face a higher likelihood of avoiding steep up-front costs associated with handling cases, costs that they must bankroll out of their firms' balance sheets on a contingent basis.
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