Unlike other countries, our Federal system and many of our State judicial systems encourage litigation against physicians and hospitals. The practice of medicine is almost unimaginatively sophisticated, as applicable knowledge continually becomes more complicated and more extensive.
This commentary addressed the subject on February 22, 2007( http://www.freecongress.org/commentaries/2007/070222.pdf ). No need to repeat. Aspects of the subject are also are addressed in commentaries on the htt://www.freecongress.org/ website - February 3, 2009; November 2 and August 26, 2008. Yet there is another development - or at least a recommendation for a development.
The Congressional Budget Office (“CBO”), almost always objective and persuasive, responding to a request from Senator Orrin G. Hatch (R-UT), on October 9, 2009 addressed an aspect of the subject of medical-malpractice litigation - cost. CBO calculates that tort reform could save $ 54 billion in Federal spending over the ensuing ten years.
The present system, alone in the world, runs up tremendous insurance costs for medical providers. These costs dramatically slice providers’ income while dramatically increasing costs to patients and taxpayers. The system also creates an avalanche of medical procedures which aren’t medically required but are strictly defensive medicine, to minimize litigation.
The CBO letter states, realistically and somewhat passingly: “. . . Broader reforms, such as the establishment of specialized courts or different standards of evidence, have also been discussed, but they have not featured as prominently in legislatively proposals . . .” Indeed, they scarcely have been proposed, much less prominently featured.
Forms of legal redress and plain common sense are not always opposites. Alas, how opposite they are in the law of torts as applied to the practice of medicine.
No profession, discipline, science or technique among those ubiquitously involving the public at large is as complicated and sensitive as medicine. Does it not defy common sense, therefore, that an alleged - whether real or imaginary - act of medical malpractice should be subject to adjudication by a jury of the medical ignoramus in a court of law? Worse yet, that a mere preponderance of the evidence - that is, more admissible plaintiff’s evidence than defendant’s - is all that is required to sustain a judgment? More worse yet, that gross punitive damages - yes, punishment - can be assessed even though the trial is civil, not criminal; no crime has been committed; and the burden of proof is merely a preponderance of the evidence, not proof beyond a reasonable doubt as required in a criminal case?
In sum, if patients’ cost of medical care, taxpayers’ cost and other monetary drains are to be reduced, the entire system must be changed. A form of specialized review, upon a very strong showing subject to review before a specialized non-jury tribunal, must be substituted. However, the contingency-fee lawyers, the so-called trial lawyers, are so politically powerful that the likelihood of major reshaping is most unlikely in Federal court litigation and in almost all State litigation. A few States have legislated award caps and tinkered with standards of evidence. In the spirit of that hallmark of the Constitution called federalism, States should move beyond caps and standards of review to try a complete change of the litigation system. Although most medical-malpractice litigation is in State courts Federal legislation could be helpful yet nothing is included amid the 1,500 pages of the pending Baucus Health-Care Bill.
Meanwhile, CBO expertly calculates the cost to taxpayers of continued tort terror. Is $ 54 billion a mere pittance amid an unprecedented national debt of about $ 1.5 trillion?
Marion Edwyn Harrison
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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