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.