Time to Re-Visit the English Rule for Litigation
Dr. Kirsch at MD Whistleblower has written about his recent unpleasant experience with malpractice litigation. Despite having full access to the patient’s chart and medical records, the plaintiffs attorney chose to include Dr. Kirsch in the suit . . apparently . . just because . . he had seen the patient.
In Ohio – where this case was filed – a plaintiff in a medical malpractice case is required to obtain an “affidavit of merit” from and “expert” witness essentially stating that the case is legitimate from a medical standpoint. Apparently, the plaintiffs attorney was unable to locate a physician to sign an affidavit. Maybe it was because . . I don’t know. . the case had no merit?
The plaintiff was granted two 45 day extensions as they searched the Ohio country-side in vain for a medical professional to certify the case. After several months, Dr. Kirsch was dropped from the suit and according to Dr. Kirsch’s malpractice insurance company, the cost of “defending” this suit on behalf of Dr. Kirsch came to $9,120.85.
And like other health care costs, this one does not evaporate into the ether. This cost – and who knows how many thousands of other cases like this each year in the US – add to malpractice insurance premiums and likely eventually find their way into the health system as a whole in the form of higher costs. In short and as usual for litigation in this country, we all end up paying the costs of excessive litigation.
Of course, the US is one of the few countries in the world that does not have the so-called “English Rule” or to put it bluntly, the loser pays (the winner’s legal bills). The rational behind this rule is not to impair an injured party’s access to compensation for legitimate cases but to impede the type of gaming of the system that goes on too frequently with personal injury attorneys. Dr. Kirsch’s case is just one example of suing every physician who ever saw the patient regardless of merit or encouraging prospective clients to file suits by taking them on contingency. These tactics are designed to maximize the statistical probability that at least one case will yield a large settlement before trial thus minimizing risk and maximizing reward for the firm.This is especially important since the majority of malpractice cases that go to trial are won by the defendant! The key strategy is to cast a wide net and try to settle early.
But as we see in Dr. Kirsch’s case, these aborted merit-less cases still incur costs in the initial and intermediate litigation period that must be compensated for. A 1992 analysis of a 1980s era experiment in Florida with the English Rule found that that not only were more claims dropped in the initial litigation period with fewer cases being settled but cases that went to trial had a higher chance of success and settlements were generally larger, all of which suggests that the merit quality of the cases improved overall.
Ohio’s 2005 statute that requires an “affidavit of merit by a properly qualified expert with respect to each defendant against whom expert testimony is needed” also allows for extensions to made for “good cause.” What causes would be good? How about not being able to find a qualified expert witness to certify a case as having merit because your case has none? It would seem that this statute is somewhat self defeating in its aim to reduce costs by limiting access to only cases with merit. Either the plaintiff is able to dredge up some paid expert with questionable qualifications to certify the case or waste even more time and money with extensions trying to find any expert to certify a case that even the expert prostitutes won’t touch! A better system is to utilize a pretrial screening panel that decides the merits of a case and has been shown to improve case quality and reduce costs.
Just as there are plenty of wasteful medical practices that increase overall costs, there are wasteful legal practices that increase overall costs and measures can be put in place for both without limiting access to medical care or to be compensated as a result of injuries from medical malpractice.
I am the defendant referred to in your post. I am reluctant to endorse ‘loser pays’, despite strong temptation to do so. I fear this would prevent worthy claims from being filed from those who may not be able to afford representation. Now, if we adopted a system where the losing lawyer pays… I favor the pretrial screening approach with some form of a tribunal to decide if a case against a physician has a reasonable basis to proceed. If the tribunal decided that the case should not proceed, then the patient could still sue, but would face legal fees and, perhaps, penalties, if he lost at trial. Perhaps, the losing attorney should bear some of the cost also. This scenario still preserves a patient’s right to sue, but makes it financially risky if a lawsuit is filed over a tribunal’s decision in favor of the physician.
I agree with everything you said above. Pretrial NON-BIASED tribunals (i.e. chosen by the court or agreed upon by both parties) appear to work well. I would also favor specialized medical malpractice courts to hear cases instead of juries made up of lay people which trial lawyers too often try to leverage by using a threat of a “big judgment” in pre-trial settlement negotiations. But keep in mind that as previous studies have found, the majority of medical malpractice cases that do go to trial are won by the defendant and the majority of actual cases of injury from medical malpractice are not even filed. The current tort system sucks for both doctors and patients in its very poor ability to select out the cases with merit The only group that seems to benefit consistently from such a system is the trial lawyers.
“This cost – and who knows how many thousands of other cases like this each year in the US – add to malpractice insurance premiums and likely eventually find their way into the health system as a whole in the form of higher costs. In short and as usual for litigation in this country, we all end up paying the costs of excessive litigation.”
Nice sentiment, but it ignores the reality of how insurers work. And it makes the assumption that money in the insurance industry would be transferred to healthcare. Which makes little sense.
” which trial lawyers too often try to leverage by using a threat of a “big judgment” in pre-trial settlement negotiations”
Only someone who has never tried a case makes such silly assumptions. Why do physicians think they have a system they know next to nothing about all figured out, and that jurors are so stupid? Is it just inherent arrogance?
“The current tort system sucks for both doctors and patients in its very poor ability to select out the cases with merit The only group that seems to benefit consistently from such a system is the trial lawyers.”
Your first point is right. Yet none of your “reform” has anything to do with paying more meritorious cases faster. It’s all dedicated to keeping people from getting paid. So, your criticism is a little deceptive. Particularly since that’s exactly what lower pays (the English Rule which you clearly know little about) is designed to do. Scare off the poor from filing if they don’t know they have a slam dunk long before they file.
To hear you wax poetic about justice while trying to close the courthouse doors to the less fortunate is a little sickening.
” The key strategy is to cast a wide net and try to settle early.”
These statements make me chuckle. Do you physicians not deal with insurance companies? Haven’t you even had to file class actions which have netted hundreds of millions just to get them to honor their contracts with you?
So why on earth do you think they throw tons of money at any lawyer who files a claim? Have you EVER settled a claim with an insurer?
Your statement reflects your complete lack of understanding of the practice of law, particularly a med mal practice. Which is not surprising, since you literally have no experience in that field. Not only that, you also clearly haven’t dealt with many liability carriers.
Hi Matt. Nice to converse with you once again. Yes, we are not lawyers, but this doesn’t mean we can’t appreciate that the system isn’t working well. I presume that you are no an M.D., but I suspect you would be fully qualified to detect serious flaws in your medical care, particularly with regard to process, communication, empathy and attentiveness. I can’t cook, but I think I can choose a fine restaurant.
You as well, Dr. Kirsch.
“but this doesn’t mean we can’t appreciate that the system isn’t working well. ”
This depends on how one defines “well”, doesn’t it? We can probably agree on some flaws. However, the solutions proposed by physicians do not seem designed to address the flaws I’ve seen you identify. They seemed solely designed to protect your insurers and make it difficult for people to pursue claims, regardless of legitimacy.
Take the “English Rule”, for example. Putting aside the fact that it doesn’t really work as you believe it to, even in England, it is designed solely for the purpose of limiting claims by the poor. Oddly though, while physicians are always quick to adopt European legal systems, they don’t want to adopt European medical systems – why is that?
While I might be able to detect emotional flaws in my specific care, such as communication and attentiveness, I would hardly be in a position to comment on the process of how you perform the specifically medical aspects of your work. And certainly not to extrapolate my individual experience to medicine as a whole. I can tell good food from bad, but I can’t necessary tell you if the taste is the result of the cooking temperature, the combination of spices, or the source of ingredients. And that would relate only to my specific experience, not all of society.
Again, if you think insurers settle often and easily, well, then you clearly aren’t in a position to discuss the economics of the practice of law or propose reforms.
I am the defendant referred to in your post. I am reluctant to endorse ‘loser pays’, despite strong temptation to do so. I fear this would prevent worthy claims from being filed from those who may not be able to afford representation. Now, if we adopted a system where the losing lawyer pays… I favor the pretrial screening approach with some form of a tribunal to decide if a case against a physician has a reasonable basis to proceed. If the tribunal decided that the case should not proceed, then the patient could still sue, but would face legal fees and, perhaps, penalties, if he lost at trial. Perhaps, the losing attorney should bear some of the cost also. This scenario still preserves a patient’s right to sue, but makes it financially risky if a lawsuit is filed over a tribunal’s decision in favor of the physician.
Emily, the losing (plaintiffs) lawyer already has a strong disincentive not to pursue a claim, because he is fronting the costs.