Legal Ethics and Reform

Medical Malpractice Shoves US Tort Processes Toward the European Model ...

The problems in medical malpractice litigation are numerous and the traditional tort system is incapable of addressing these problems. Here is a short list of the problems: (1) only a small percentage of those injured by medical malpractice (hereinafter “Med-mal”) ever bring a lawsuit or get compensated, (2) of those that do bring lawsuits fewer than half are ever compensated, (3) those that have minor injuries and sue get more than their injuries deserve, (4) those with major injuries oftentimes get less than their injuries deserve, (5) trials oftentimes degenerate into diametrically opposed testimony delivered by expert witnesses testifying to judges and juries that are ill equipped to comprehend the facts they are hearing, (6) judgements issued by different juries for the same injury are widely different, (7) the typical Mal-med case takes three to four years, (8) staged payments over time are generally not allowed even though many injured parties most often would be most benefitted by such an plan, and (9) the costs (ie expert witness, lawyers, court administration, etc) of trying Med-mal cases consume about 40% of the judgements or settlements obtained. These facts were presented by Professor Stephan Landsman from DePaul University, Professor Michael Saks from Arizona State University, and Paul Barringer from Common Good, on C-SPAN on 3/29/2005.

This group agreed on the problems but they disagreed on the solutions to the problems. Saks and Landsman, both law professors, thought that the problems could be solved by “tweaking” the existing system. Barringer, on the other hand, offered a very creative approach. He felt that (1) Med-mal cases should be decided by special judges who have had special training in medical subjects (juries would not be used in these cases), (2) the only expert testimony allowed would come from court appointed experts, (3) the judgements would be determined by a preset schedule that assured that similar injuries in different jurisdictions got similar judgements.

The objections to Barringer's approach were Constitutional and procedural. The Constitution guarantees the right to a trial by jury, and generally litigants are allowed to present their own case including the experts they want to offer to show that a recognized standard of care was violated. Barringer pointed out that in Workman’s Compensation proceedings these sorts of “expediting procedures” are standard. Saks and Landsman countered by saying that in workman’s compensation there is no need to have a finding of negligence. The US Supreme Court has said the existence of a injury can entitle the workman to payments so long as all injured workers get payments regardless of who is at fault.

Obviously this standard will not work in Mal-med cases so the time may have come for Congress to pass a Med-mal system along Barringer’s outline and simultaneously take away the Supreme Court’s right to hear appeals on Constitutional and procedural issues arising from this new law (See Art.3, Sect.2, US Constitution which gives Congress the right to regulate what cases the Supreme Court takes up.). If this happens, Med-mal cases would have a truncated adversary process that resembled some aspects of the European tort system. Later Congress could provide government paid “neutral” attornies to discover facts before trial and ask questions at trial to draw out all the facts, or perhaps Congress could go all the way to the European model and allow the judge to decide the case based upon a file full of the facts gathered by the government paid “neutral” attorney assigned to the case.

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