Ways to Reform the Tort System That Do Not Further Harm Victims

There’s been a lot of discussion recently about medical liability tort reform.  President Obama even mentioned he’d be willing to consider medical liability reform to stop “frivolous lawsuits.”  So let’s start this discussion with these indisputable facts: 1) the Institute of Medicine confirmed that nearly 100,000 people die every year of preventable medical errors; 2) second study found that 1 in 5 patients admitted to hospitals suffer some degree of preventable medical error.  Also, I cannot discuss this topic without also asking when we will begin a serious discussion on ending and preventing malpractice, instead of focusing on stopping litigation by it victims.  As University of Pennsylvania law professor Tom Baker said, “We have an epidemic of medical malpractice, not of [medical] malpractice lawsuits.”

Now, with regard to the vast majority of “tort reform” options that get discussed in Congress and in the media, most are completely unfair because they usually include placing some sort of arbitrary cap on damages.  In other words, regardless of the harm caused and the loss suffered by the plaintiff, the most that can be recovered is a set amount of money. I have discussed this before in this blog.

Also, let me address the notion of damages caps deterring frivolous lawsuits.  Damages caps do nothing to limit frivolous lawsuits.  In fact, exactly the opposite happens.  Legitimate cases are the ones that get capped at an arbitrarily low number.  A lawsuit where damages exceed the caps inherently involves a serious illness or injury. Therefore, by definition, it’s NOT frivolous. A lawsuit that is indeed frivolous involves damages which are much, much smaller or nonexistent and generally has no basis in the law.  In other words, there’s really no cause of action that exists.  The adversarial system is designed such that proof is required of all elements from duty, to breach, to injury, to causation, to damages.  Cases that cannot meet the appropriate legal standard are dismissed.  Likewise, lawyers who file truly frivolous lawsuits can already be sanctioned by the judge.  They can be ordered to pay thousands of dollars if their frivolous case is not dismissed before the defendant has to incur any serious legal expenses for defending a frivolous case.  It’s called “Rule 11 sanctions.”

Having said all this, there are things that can be done to address some legitimate concerns that defendant doctors complain about, and that would make the legal process easier for everyone involved.  So, let’s explore some alternative theories which may help improve the system without jeopardizing the rights of victims.


1)      Notice of Claim to Toll the Statute of Limitations – Enterprise Notification

One of the biggest complaints doctors have is that they are named as a defendant in a case when it is obvious that another provider, like a hospital or other physician, is the negligent actor.  The reason this happens is that, from the plaintiff’s lawyer’s perspective, it is often hard to know who committed the malpractice until you’re well into the case and depositions have been taken.  However, if you don’t name all the actors in the lawsuit before the statute of limitations runs, you cannot go back and name them once you’ve discovered they share in the fault.  Moreover, investigating cases is very time consuming.  For example, just gathering all the records can take months.  Once the records are received, it often takes several more months to identify an appropriate expert and have the case reviewed.  Also, it’s not uncommon for an injured person to wait until the statute of limitations is approaching to contact an attorney.

To fix this, entities such as the New York State Governor’s Medical Malpractice Task Force, have proposed a procedure by which the lawyer can notify the potential defendant of the claim, without having to actually name them as a defendant in the lawsuit. The state of Illinois has enacted a statute that allows a party to be named as a respondent in discovery in a civil suit.  Both of these systems toll the statute for the plaintiff and allow the (potential) defendant to put their malpractice insurance carrier on notice so that both sides can begin investigating the claim.  However, the potential defendant does not have to be named in the lawsuit and his/her malpractice carrier does not incur the cost of legal representation.  Then, if the plaintiff’s lawyer discovers negligence on the part of medical provider while pursuing the named defendant(s), the other negligent actor can be added.  If, however, the facts show that the negligence was the responsibility of the primary defendant, as the parties thought from the beginning, then the potential defendant is not added to the suit and incurs no legal costs.


2)      Certificate of Merit system

Another complaint doctors have is that the plaintiff “has no proof” that malpractice occurred.  A certificate of merit is a system which requires the plaintiff’s lawyer to provide an affidavit or other written statement from a physician with the same or similar specialty of the target defendant confirming that he/she has reviewed the case and believes to a reasonable degree of medical probability that the defendant breached the standard of care, and that the case has merit and should proceed.  By requiring the plaintiff’s lawyer to provide this document either with the filing of the lawsuit, or within a reasonable time thereafter, or face dismissal with prejudice, both sides know that the case is not frivolous and must be taken seriously.

This system is good for both sides.  First, medical malpractice cases require expert testimony anyway.  Providing a certificate of merit will weed out the good lawsuits and good lawyers from the bad.  Therefore, it doesn’t hurt the plaintiff because it forces the plaintiff’s lawyer to have all their ducks in a row.  Also, even if the plaintiff waits until the last minute to decide they wish to proceed with their case and find a lawyer, the lawyer can have a reasonable period of time to have the case reviewed, while still filing the lawsuit and preserving the statute of limitation.

It’s also good for the defendant and defense lawyer because it forces the plaintiff’s lawyer to show their hand earlier rather than later.  This facilitates the defendant’s malpractice carrier to decide whether they want to settle the case earlier and not incur legal expenses, or fight the case and proceed to trial.  Either way, they are also better off by knowing enough to know how they will want to proceed.

These are just two examples of “Tort Reform” that work for everyone involved.  By enabling everyone involved to slow down and evaluate the claim without barring it altogether, these suggestions can provide smart solutions to medical liability reform.  It saves legal fees for malpractice providers, reduces the number of physicians and other medical providers who are being sued, but also does NOT add further harm to victims of malpractice.  So, let’s talk about changes that make sense for all of us, not just the insurance industry.

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