I lived in Indiana for about five years. My first job out of graduate school was as a post-doc and visiting professor at Indiana University in Bloomington. It’s a great place, and I eventually assimilated pretty well – I enjoyed the Little 500 and joined the wild celebration when Indiana won its last NCAA Basketball Championship in 1987.
I never really felt comfortable calling myself a “Hoosier” though. I had particular disdain for the practice of using “Hoosier” as a contraction for “Who is your” – and here I go using that device myself in the title of this post.
So – who is your tort reformer?
It might just be Indiana – at least when it comes to medical torts.
The battle for health care reform has certainly been loud and divisive. There has been more shouting and protesting and marching than actual discussion. There has been a lot of misdirection and misinformation. Some of the issues raised are downright silly and would be funny if people didn’t actually believe them (fear of death panels and involuntary euthanasia, for example).
Some criticisms are decidedly not silly. For example, conservatives consistently raise “tort reform” as an issue. Why don’t liberals include tort reform as a part of the package?
My answer? Yeah – why not? You might be surprised that I support tort reform. After all, aren’t liberals supposed to be against it?
I think this comes down to a “baby and the bathwater” issue – and most liberals err on the side of protecting the baby while most conservatives really want that bathwater gone.
Let’s concentrate for now on medical malpractice. There are certainly other areas ripe for reform – but with the ongoing health care battle it seems particularly appropriate to look at medical malpractice suits.
Besides – I have something to write about medical torts.
There are plenty of very real cases of medical malpractice. Physicians operate drunk and kill patients… nurses misadminister drugs… drug companies improperly label drugs resulting in accidental overdose…. Surgeons somehow manage to remove the wrong kidney…. Pharmacists and physicians fail to recognize fatal drug interactions.
In my opinion victims of such malpractice – and their families – should receive substantial compensation from the courts. If tort reform means limiting awards to victims of serious abuse – well, then I guess I am against it.
But for every example of true malpractice there are many more “fluff” malpractice suits – groundless suits submitted by personal injury lawyers in the interest of nothing more than making a quick buck. The “fluff” class-action suits are the absolute worst because the lawyers are the only ones to profit from those. Our current system is nothing more than a subsidy for PI attorneys. The fluff lawsuits must be eliminated.
Therein lies the Gordian knot.
How do we separate the true cases of malpractice from the fluff lawsuits?
Our jury system is not well equipped to handle this issue. A “jury of your peers” will generally not include anyone with enough medical expertise to distinguish true malpractice from the fluff. In fact, you could be certain that any physician in the jury pool would be challenged and dismissed.
How is a jury of non-experts to decide? Both sides will have passionate lawyers – lawyers who know how to talk a good game. Both sides will hire “expert” witnesses – who really aren’t experts at all. No – expert witnesses are just whores who sell their souls to tell the jury what their side wants the jury to hear.
In the end it does not come down to the facts – it comes down to which side has the most convincing lawyers and experts.
This practice has to stop. Unfortunately, the typical suggestion – a cap on damage awards – hurts the true victim as much as it does the non-victim. The baby goes out with the bathwater.
Is there a way out of this bind? A way to untie the knot?
A physician friend recently told me of a system in Indiana that just might offer a solution.
In Indiana, individuals wanting to claim malpractice first submit their case to a three-member panel of physicians. That panel reviews the facts of the case and determines if malpractice may have occurred or not. If the panel finds malpractice is unlikely the case ends right there. If the panel finds malpractice may have occurred, the case can more forward to trial.
The system has a number of advantages. PI lawyers are far less likely to file “fluff” suits because they will generally be unable to fool a panel of experts. True victims of malpractice, on the other hand, stand to receive just compensation. Physicians in Indiana will be able to concentrate on providing good health care instead of “defensive medicine” designed merely to avoid lawsuits. Finally, malpractice insurance will be less expensive because fewer lawsuits will be filed and even fewer will go to trial. In the end, medical costs go down – and that is a major goal of all reform efforts.
It certainly isn’t a perfect system. I can see several possible concerns:
– The review process is apparently quite lengthy – it can add up to a year to the process. Does this delay put an undue burden on the true victim?
– There is a worry among lawyers – perhaps a real worry – that the panel will always err on the side of the physician.
– There is always the worry of corruption. There is lots of money floating around in the medical world, so the temptation to buy off the panel is certainly there.
I have had quite a bit of trouble finding additional information about this program. It looks like an interesting solution, despite the problems. I would be particularly be interested in hearing from people who know more about the system. Do you think it works? What are its problems?
Then comes the bigger question: Should something similar be enacted nationally? Should this system, or something similar, become a part of health care reform?
To me, it does look promising.
