Commentary entitled “The Future of Malpractice Reform” by Tara F. Bishop, MD; Paul E. Klotman, MD; Bruce C. Vladeck, PhD; and Mark A. Callahan, MD appeared in The American Journal of Medicine, August 2010, Vol. 123, No. 8, pp. 673-74.
A invited guest on this blog, Jerome H. Jaffee of The Jaffee Law Firm, P.C. (McLean, Virginia) responds below. Mr. Jaffee is a personal injury lawyer.
In response to Drs. Bishop, Klotman, Vladeck, and Callahan, I agree with their conclusion that the current malpractice system needs reform, but take issue to their assertion that many malpractice suits are frivolous. In fact, most reviews of malpractice claims filed show almost no claims having been dismissed by Courts as frivolous, and I know of almost no cases sanctions have been brought against patients or their attorneys for commencing frivolous litigation (an available sanction to any court.) The general feeling that these suits are frivolous is due more to the malpractice carriers’ propaganda campaign over the last 20 years, than to any factual basis.
Secondly, as a solution, the good doctors recommend specialized health courts. We have tried this approach in Virginia, with malpractice panels hearing cases. The panels consisted of a lawyer, a doctor and a judge. However, whenever the panel ruled against the doctor, the carriers appealed, destroying the effectiveness of the panel in reducing litigation. The panels are now worthless exercises in futility.
The final item of interest to me is the concept of a no-fault system, as is used in some European countries and in birth related injuries here in Virginia. Again, ask any lawyer who handles these cases and they will tell you the litigation is as complex, expensive and lengthy as ever, because the funds for the system comes out of the insurance carrier and doctors’ pockets. Thus, every case is fought to the bitter end, even when a catastrophic injury has occurred. The same is true for Vaccine-related injuries, which are subject to a special Federal court.
In summary, the system needs reform, but not by restricting injured patients’ rights. Rather, the approach of more doctor honesty and error disclosure, also espoused by the authors, would do more to foster trust and reduce suits than any other method.