“What do you call a thousand lawyers on the bottom of the ocean?” — Old joke
In the debate about how to control rising health care costs, one thing that conservatives are certain to suggest is tort reform. While not the whole solution, this idea does seem to have a lot of merit. With the spectre of huge lawsuits hanging over them, physicians are forced to practice defensive medicine. This involves performing tests to rule out every possible cause of a problem, and is often more about protecting the doctor than about diagnosing an illness. And the cost of litigation has made massive malpractice insurance premiums a major operating expense for the medical business, an expense that must be passed along to the consumer.
But what kind of tort reform? A lot of talk centers around limiting the amount of damages that can be assessed. I’m not sure that this is a good idea. While we often hear about damage awards that seem outlandish, let’s face it, if someone suffers harm that costs millions to repair, that’s what he should be compensated. It’s hard to put an arbitrary maximum dollar figure on justice. Another idea centers on a loser pays system, where the party that does not prevail is responsible for all costs associated with the case. Better, but still some flaws. Just because a plaintiff does not win his case doesn’t automatically mean that the case was without merit. Sometimes it can be a close call that requires a trial to sort out, and people with legitimate grievances should not be denied their day in court out of fear.
But on the whole, I like the loser pays system, with some modifications which I will suggest. Bear in mind that the rules that I am proposing apply not only to medical malpractice, but the whole range of civil lawsuits where financial compensation is sought. And while it’s not uncommon to hear members of Congress discussing tort reform, these matters are traditionally covered by state laws, and that’s where I would like to see these rules tried. Let the federal government worry about defending the borders and delivering the mail. So, without further ado, here are some rules I would like to see:
#1 The amount of damages requested, both compensatory and punitive, must be specified up front when the suit is filed. No limit on the amount that can be asked, but that amount is the maximum that can be awarded, and includes lawyers’ fees and all associated costs. The court may award a lesser amount if that is deemed fair, but not a greater amount.
#2 Plaintiffs (and their lawyers) may only collect compensatory damages. No limit other than rule #1, and financial harm, pain & suffering, lost time, legal fees, etc. are considered compensation. If punitive damages are assessed, those funds will be disbursed at the discretion of the court, but no part of them can go to the plaintiff, his lawyers, or anyone associated with them. Personally, I’ve always felt that punishment belongs in the criminal justice system, but I can see how the civil courts may be a more cost effective way to mete out justice. But punishment should never be used to enrich lawyers.
#3 Once a suit is filed, it cannot be withdrawn without the concurrence of the respondent. Anyone accused of doing harm will, if he wants it, be guaranteed his day in court. The purpose of this rule is to minimize legal fishing expeditions, where a suit can be filed in hopes of getting a quick settlement, and withdrawn if that doesn’t happen. Commonly called a nuisance lawsuit.
#4 In any civil action in which monetary damages are sought, the adjudicating authority (judge or jury) will have the option, besides finding for the plaintiff or for the respondent, to issue a finding of abuse of process. This means that the suit was deemed to be frivolous. In that case the plaintiff, if not represented, or, more commonly, the council for the plaintiff can be held liable for compensatory (court costs, respondent’s legal fees, time, etc.) and punitive damages up to the amount specified in the suit. These damages can be awarded as part of the decision in the case, and will not require a new trial. If the plaintiff is not represented by council, he must, as part of the filing process, sign an acknowledgment of this rule. If the plaintiff is represented, he cannot be held personally accountable for abuse of process. The onus is on the lawyer to not file a frivolous suit. If he does, he can be made to pay. Big time.
#5 In any civil action in which monetary damages are sought, The judge may, at his discretion, require the council for the plaintiff to post a bond up to the amount specified in the suit. If the case is to be decided by a jury, the bond must be assessed without the knowledge of the jurors, and cannot be mentioned at the trial.
#6 If a lawyer has been found to be in abuse of process within the preceding five years, the judge must require a bond of no less than 50% of the amount specified in the suit. Again, the jury will not know about the bond, so the plaintiff can get a fair hearing.
There you have a few simple rules that I would like to see states enact. As this applies to health care, I think that I can make a prediction without going too far out on a limb. Physicians will flock to states that have these rules. Lawyers will migrate to states that don’t. So where are you going to look for health care?
But now, unfortunately, it’s time to mention one…
Simple fact of life: None of this is ever going to happen.
The reason this won’t happen is not merely because my readership is so miniscule (although if everyone who does read this shares it with everybody they know, it couldn’t hurt). It’s because of the makeup of our legislative bodies. I’ll leave it to people with more time on their hands than I have to research the exact numbers, but does anyone doubt that the percentage of lawyers among our elected officials is many times that of the general population? So, no matter how good lawmakers sound when they talk about tort reform, can we really expect rules like these when we live in a country that features government of the people, by the lawyers, for the lawyers?
By the by, in case there is anyone who didn’t know the answer to the question at the top of the page, it’s the title of this article.