A Recap of Sorts: Civil Justice Developments in Medical Malpractice

Kia Franklin

A Recap of Sorts: Civil Justice Developments in Medical Malpractice

A lot has been going on lately in the world of medical malpractice suits and med mal insurance. For instance:

Yesterday, Notre Dame football Coach Charlie Weis lost his medical malpractice lawsuit against his gastric bypass surgeons, who he said allowed him to bleed internally for 30 hours and almost die. See article here.

This Newsday article entitled “Don’t blame victims for problems with malpractice” was published yesterday. It points out the trouble with damage caps as a solution to the increasing cost of medical malpractice insurance; namely, that this shafts the real victims of medical malpractice: the patients and their families. However, the article then goes on to propose equally problematic “solutions” such as health courts.

Last week North Carolina lawmakers approved a measure to limit monetary damages in health care negligence cases in which the parties agree to go to binding arbitration. This is an interesting situation because the North Carolina Academy of Trial Lawyers united with the North Carolina Medical Society to support this law. It is unclear the extent to which the legislation contemplates the role of insurance copmanies’ profit motive in the increased malpractice insurance costs. But N.C. just recently enacted legislation outlining what the insurance commissioner may consider when deciding whether to approve rate increases. This AP article calls the damage cap legislation a “mild breakthrough.”

Thoughts?

Posted at 10:57 AM, Jul 25, 2007 in Permalink | Comments (3) | TrackBack (0)

Comments

Have you noticed how many attorneys (including many of the ambulance chasers) use mandatory arbitration provisions in the contracts they have their clients sign? If such use by business is wrong, then certainly I would expect this site to decry the use by attorneys of this same "evil"

Ha!

You say "Ha!" as if there's anything funny about shafting plaintiffs. Mandatory binding arb is just as wrong in that context as it is in any other in which there's unequal bargaining power and someone is asked to sign away his or her rights before they've even been injured.

This is gross. I don't know much about this but a respected source says that there's even a case in which the Fed Arbitration Act preempted legal ethics rules (against shafting your client) to enforce the clause. That is just plain wrong.

I'm not sure where you think my alliances lie, but I'll be clear that I'm not in favor of ANYONE shutting people out of the civil justice system, lawyer, corporate profiteer, or otherwise.

Like many attorneys, physicians have tried mandatory arbitration provisions only to have these overturned. They are still recommended by many risk management programs though.

To look at how to fix healthcare and the medmal issue, it seems most apparent that we have to follow the economics. If there was no money in it, there would not be insurance companies and their would not be suits to go after the money that they have. It is essential then to reform the current regulations that govern how insurance companies make money. These reforms are fought not only by the AMA, but also the formerly named ATLA as reforming the insurance industry would bite the hands that feed both the healthcare and legal industries. We can hide behind "tort reform" and "civil Gideon" phrases, but to effect change we have to address the economics of the healthcare and legal system.