Nonsense from the unaware
Phillip Howard, the author of the influential book The Death of Common Sense, has given an interview to Medical Economics, which has published it under the title "A legal crusader's solution to the malpractice mess". His proposal: move the decision-making in medical malpractice claims to a special court, staffed with judges particularly selected to decide these cases. While his idea may have some merit in general, the interview shows that he has little understanding of how the current legal system works.
"First, consider the fact that rulings under the current system don't automatically serve as precedent. Indeed, even if a doctor wins a lawsuit, someone could still bring the same suit against him tomorrow."
Wrong. A win in a case prevents the same suit from being refiled by the same person. This is the principle of res judicata, and it has nothing to do with precedent. If Howard is referring to the fact that a similar lawsuit may be filed by another patient, he provides no explanation for the peculiar conclusion that the first should have anything to do with the second. Unlike product liability litigation, one person's claims should and do have nothing to do with another person's in medical malpractice litigation, because each physician-patient interaction is unique. We see product manufacturers serially sued for essentially the same claims quite often; that rarely happens in medical malpractice cases.
The rules of precedent govern the influence that one case decided by an appellate court has on later cases, involving different parties, under similar factual situations. They have nothing at all to do with the situation that Howard mentions.
He suggests that the new courts be comprised of "judges with medical expertise, or physicians, or a three-person court with an attorney and two physicians". As we said, there is actually some merit to this idea, but it is not by any means a panacea.
The previous medical malpractice arbitration system under Michigan law -- now discarded -- came close to one of his alternatives. Under the Michigan system, the parties would select one physician, one attorney, and one "public member" to serve on a panel. The overall result was that more cases were decided in favor of claimants, although the average award was somewhat lower. The transactional costs -- the costs of trial, retention of expert witnesses, and the like -- were not much different than they are in court.
Howard says about large awards:
"We must always balance the alleged predicament of an individual against the broader interests of society. Of course, sometimes it may be appropriate to have a very large award. But in such cases, the decision makers need to understand that the money isn't coming from some secret cache—it's coming out of the health care system. So making someone rich because his 92-year-old grandmother died due to inadequate care isn't very sensible."
Most cases brought by the grandsons of 92-year-old decedents do not make them rich. Indeed, such claimants usually have a hard time finding an attorney willing to take the case. The big awards, those which catch the attention of the public and the medical profession, are those brought on behalf of severely injured living plaintiffs -- in particular, children.
11:20:31 PM 
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