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Under Utah law, all actions against medical professionals must be filed within 2 years of the date of the act resulting in the medical malpractice injury. Because of this limited time limit and in order to protect the rights of the innocent victims, a plaintiff’s attorney is often faced with the dilemma of whether to sue doctors who had limited contact with the victim and whose conduct may not have risen to the level that would suggest suit against them is appropriate. If an “innocent” doctor is forced into litigation, under those circumstances, that healthcare provider would incur significant costs to hire a defense attorney and prove his/her innocence.

A Utah medical malpractice reform bill that would limit who can be sued for medical malpractice, heads to the House after receiving support from both sides of the “litigation table.” The bill, as I understand it, introduces an independent case-screening panel to look at the fact situation and determine who, if anyone should be properly named as a defendant. It may seem unusual that trial lawyers, those who represent injured victims, would support a tort reform bill, but this one would help prevent unnecessary litigation against innocent doctors. This is no financial benefit to either plaintiff or trial lawyer in suing a doctor has is not responsible for the injury suffered. Contrary to the rhetoric of the US Chamber and the “tort reform” crowd, trial lawyers do not benefit from or support the filings of “frivolous lawsuits”. Trial lawyers only seek justice for their clients; politics (on either side) should never get in the way.

On the surface this law works to make sure that victims have a chance at justice against the correct wrongdoers; they ask for nothing more. However, history and skepticism in dealing with those who seek to enhance the profit margins of corporate wrongdoers suggests caution. Yet, it is rare that we have seen a “tort reform” measure supported by the plaintiffs’ bar. That’s because tort reform is never about the victim and always about protecting corporate wrongdoers. Sadly, in tort reform states, victims are rarely fully compensated while the medical malpractice insurers’ bank profits and doctors get away with figurative and literal murder. The unanswered question here is the constituency of the case-screening panel. An impartial, bipartisan, panel with professional on both sides of a case – doctors and trial lawyers – might be fair. If, however, the new law requires victims to plead their case to a group of doctors, hospital officials and insurance company representatives, I see a conflict of interest, a deck stacked against the plaintiff, and a typically bad piece of “tort reform” legislation. Time will tell; it is refreshing that bipartisan support was sought and achieved. But this writer remains skeptical; when it comes to medical malpractice and politics, a trial lawyer is usually left holding his nose.

36 Comments

  1. Gravatar for Jim O'Hare RPLU AIC AIS
    Jim O'Hare RPLU AIC AIS

    Dear Mark - Is it really about justice? It has always been about money, has it not. Justice is a subjective concept like pain and suffering. Money is objective, and THE objective. You can win the trial and get an award of 50 bucks. So justice was done right?

    Panels do not work and are a waste of money. They had thm in NY thru the 80's and 90's. It had no teeth, and went the way of the dinosaur. If you had a finding for you or against you the jury heard about it and then - so what.

    Good idea on paper it sank in practical terms.

    Tort reform does not always favor the "corporate wrongdoers" Really Mark?

    Regarding plaintiffs rarely being fully compensated. The case is worth exactly what they say yes to in settlement. To me, that is fully compensated. A verdict is the voice of the people. It is a great voice when awarding lotto P&S figures, but not otherwise?

    There is alot that can be done to improve it all- mandatory insurance for one. Something to trim down vicarious liability, so the corporate wrongdoers dont hold the bag everytime. A certificate of merit provides some degree of credibility, even though it isnt hard to find and wont invite defendants that shouldnt be there. More nurses= less fatigue, get rid of the archaic 72 hour resident shifts, to further diminish fatigue and improve communication. These things would work. Will 25 million more patients coming into the system, there will be more med mal claims as fatigue will increase and communication decrease.

    Get rid of the EMR's or make them uniform , as someone who reads them- they suck. Every hospital is different and they provide no chronological story. There is plenty that can be done, doing it is the hard part. Plaintiff or defendant- are these suggestions the bees knees or just the cats meow??

    regards

    Jim

  2. Gravatar for jc

    Since 80-85% of medical malpractice cases which go to court are won by the defendant doctor, the doctor is one of the victims in medical malpractice cases.

    I say an important reform is to force plaintiff attorneys to take additional training or an internship before they are allowed to file medical malpractice cases. That would keep bozo plaintiff attorneys from filing frivolous malpractice litigation.

  3. Dr. Cox: Don't you have anything else to argue rather than your tired "85%" statistic? You KNOW that the vast majority of cases that are filed in court are SETTLED in favor of the plaintiff, yet you never include that fact in your "statistic". You KNOW that over 200,000 people are killed, each year, by medical mistakes, but you ignore that statistic, as well. You also KNOW that part of that "85%" loss number, if it is a real statistic, includes losses that should have been wins and cases that, although lost, were not "frivolous" and were tried by well-trained, excellent lawyers. There are talented lawyers on BOTH sides of a case; your statistic ignores that. As to more training for lawyers, I have no problem with any profession working to make its members better at what they do. But the idea that inexperienced attorneys are filing "frivolous" cases in today's very restrictive, very expensive legal climate is absurd. No one, including the lawyer, profits from the filing of worthless cases. Find a new and true argument, would you, please?

  4. Jim: "Justice" is your day in court, in front of a judge or a jury (litigant's choice)' in a free and uncluttered legal system, with the neutral trier of fact and law deciding liability and damages without any outside influence and no politically purchased restrictions on the outcome. I will not argue that "money" is not a factor. I do argue that we have three branches of government in this country; the constitution separates powers for a reason. When special interest money begins to influence the outcomes of trials, important civil rights are restricted. Those with money are provided an easier path to victory than those without. Those who are grievously injured see their awards limited and reduced to artificially low numbers by POLITICIANS, rather than independently elected judges or juries. THAT is not "justice" and the taxpayer is left with a bill for the difference. To your $50 point: YES! If a judge (not a political lackey, but a fair judge) or a jury determines that 50 bucks is a fair number, yes, that is "justice" as long as there was a full hearing on the merits of the case. But that justice has to include an unfettered ability to be awarded ANY amount the trier of fact determines to be fair and appropriate, without political influence limiting that award. I also agree that "justice" can be whatever the plaintiff settles for, but not when the system restricts the amount possible to such an artificially low amount, that the plaintiffs choices are virtually forced upon them because there is little more to achieve by going forward. The 7th Amendment should be just as important to America as the 2nd. That is the "justice" I seek.

  5. Gravatar for jc

    There Bello goes again. First off, finally Bello has acknowledged that 85% of malpractice cases which go to court are won by the defendant doc. An 85% failure rate by the plaintiff's attorneys. A failure rate unmatched in American industry. Secondly Mark, your statistics about settled cases are all wrong. My medical malpractice carrier tells me that they settle on 16% of their cases and that comports well with my experiences. Most cases are thrown out. Of those that are settled I bet several of them get settled for nominal amounts (<10K) simply because the doc wants to get it over with after a legal fight which can last a decade. Actually, Mark, of the cases that go to court, only 15% win and less than half that number of patients even get enough money to cover their legal expenses, the plaintiff's attorney and legal expenses gobble up the entire award in most cases. (Can take >$100K in plaintiff legal expenses to win a case and the plaintiff's attorney rakes in 40% of any award, so if the patient doesn't win at least $150K, the patient get nothing.) What I see here is a legal system that victimizes the patient, the doctor and only benefits plaintiff attorneys. This is why we need to get rid of the current medical legal malpractice system.

  6. No, Dr. Cox, there YOU go again, twisting my words. 1.There was no acknowledgment of your stupid percentages, just a statement that whatever percentage of cases are won or loss, your statistic does not include those that SETTLED in plaintiff's favor. 2. For the first time in history, you admit that SOME percentage of cases settle, an AMAZING (and probably painful) admission on your part. 3. The rest of your response is the usual, unsupported, "Cox says, so it must be true" nonsense that you always spout. Cite the unbiased resources for your statistics or stop spouting them as if they were true.

  7. Gravatar for Jim O'Hare RPLU AIC AIS
    Jim O'Hare RPLU AIC AIS

    Thanks for taking the time to respond. The 7th amendment is simple enough. Having handled med mal claims this long. Different states have lobby's of different strengths. Plaintiffs bar in some states own the arguments, defendant's in others.

    To remove the politics is a pipe dream. It has always been equal, I am ok with that, as long as I am more equal than you are. That is truly the way it is everywhere. No ?

    There needs to be a limit on P&S. Go wild with the other causes of action, the objective ones.We can argue the amount, but you still cant measure pain with a scale nor ruler, where every other cause of action can be measured. You can never assess subjectivity objectively. There are no tools for that. The concept of P&S was not a thought for the authors of the 7th amendment.

    Over 26 years handling claims, I have allowed a verdict nearly 100 times, about 4 per year. I have settled more than 1100 claims personally. Thoase settled with varying degrees of merit or a doc that just wasnt able to defend himself/ herself. From 5k to 9M.

    I openly took verdicts on what I thought was a slam dunk only. My defense counsel lost 6 of those and not one cost more than the policy limit. In poker they would be called Bad Beats. The 85% number gets thrown around like all cases were required to be tried and the field is just not level for the plaintiffs. Some cases are entirely defensible- those get tried.

    200k dead from medical mistakes yearly. This is goofy just thinking about it. Who is the registrar and what number do you call with the cause of death as another Med Mal. There is no hotline, just a guess by some JAMA nitwit trained in medicine and not statistics. I have also seen 96k/yr. Yes there is more than there should be and yes one is too many.

    Hello!. is this the bureau of med mal deaths? I have another for you. Think about this . Can we agree that this is NOT a fact by any definition. Lastly, frivelous suits have gone the way of the edsel. too expensive and severity is necessary to make it worthwhile. Regards Jim O'HAre RPLU AIC AIS

  8. Jim: I don't have any disagreements with much of what you say; I agree that most cases that ultimately "go to verdict" are chosen to be tried by the DEFENDANT. At the end of the long litigation trail and after the best cases are resolved in the plaintiff's favor, the doctors should win the lion's share of the leftovers. Statistics would be more accurate if the medical and hospital communities would cease preventing the passage of legislation or rules that REQUIRE the formal and accurate reporting of injuries and deaths following medical mistakes. Then we could stop quoting "estimates".

  9. Gravatar for jc

    I strongly encourage docs to fight medical malpractice cases all the way to a verdict in court!

    Most juries are sympathetic to docs and will give the doc the benefit of the doubt. So if it is equivical go to court! Most plaintiff attorneys are incompetent and lose even cases that they should win. As for frivolous malpractice suits, I see them all the time. You know, getting sued for a typographical mistake or a computer error - -or some adverse result blamed on a pt not taking his medicine on time. I believe the current med mal system benefits only plaintiff attorneys like Mark Bello. We need medical courts.

  10. Dr. Cox: "Juries are sympathetic; lawyers are incompetent. Cases that should win, lose". If all of this is true, a bad doctor like you who wishes to "game the system" should love this system, no? It is OK with you that cases that should win, lose. That statement speaks volumes about the difference between you and me. And, if you had done even a small amount of research on me, you would have discovered that I am not a "plaintiff attorney" and I don't directly or indirectly benefit from a fair justice system. I can do just fine in a fair justice system or a restricted one. I have no financial stake in this game. I simply believe in and advocate for victim's rights and I believe, strongly, that the perpetrator, not the taxpayer, should pay for the harm he/she causes. You, apparently, stand for the perpetrator getting away with it and the taxpayer being left with the bill for it. You represent all that is wrong with the dark side of your profession.

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