Jewish World Review Feb. 28, 2003 / 26 Adar I, 5763

Drs. Michael A. Glueck & Robert J. Cihak

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Consumer Reports

Outside the Jury Box: Seeking Justice rather than a Lottery in Medical Liability | In a recent column (" Malpractice Insurance: They Reap What They Sue") on the ruinous effects - ruinous to everybody but the trial lawyers - of the epidemic of medical malpractice lawsuits, we noted that most such actions don't involve malpractice at all. For example, "80% of lawsuits do not involve any negligence at all," according to author and attorney Philip K. Howard, writing in the Jan. 27 Wall Street Journal.

Many of these lawsuits are filed because of imperfect outcomes or unpleasant complications of competent treatment: things that go wrong because perfection is not granted to mere mortals.

We suggested that one way to lower the cost of medical care would be to permit patients to buy individual "unhappy results" policies, similar to flight insurance. Author Paul H. Rubin calls this "tort reform by contract."

It would make for fewer predatory and frivolous lawsuits, since those million-dollar policies attract lawyers like picnics draw ants. It would also lower doctors' insurance premiums, which patients pay for in the end.

Readers reminded us of other possible deterrents to litigious larceny and contingency-fee coercion. Mark James, for example, reminded us of "loser pays," an arrangement by which the losing party covers the legal expenses of the winner. If the judge and jury exonerate the doctor, the people suing pay the doctor's costs. Perhaps we should call this "winner wins."

Some states forbid "punitive" damages, i.e., awards designed to hurt the doctor, not compensate the victim. Art Jetter, a life and health insurance broker in Omaha, Neb., reminds us that the Nebraska state constitution requires "punitive damages" to go to the state education system, not to the plaintiffs or their lawyers. This makes sense because these damage awards are designed to punish the guilty and not enrich plaintiffs or their lawyers.

Jetter notes that Nebraska's "medical insurance premiums are among the lowest in the nation" and that Nebraska has "among the lowest medical liability premiums in the country."

Finally, we suggested that real malpractice cases, which are inevitably highly technical and complex, should be handled by a specialized court system, not slugged out in courts of general jurisdiction. For this notion we're indebted both to common sense and to a 1997 book, "Justice Matters," that offers a startling vision of how such a court system might function.

The commonsense aspect is, well, common sense. We already have dozens of specialized courts: divorce court, juvenile court, tax court, admiralty court, bankruptcy court, etc. These exist in areas where special expertise and/or sensitivity are required.

Medical courts would seem a natural. And if they were constructed as CORE courts - an acronym standing for "COmmonality/REsolution" - they might well serve as models for reform in other complex fields.

The CORE court concept came about through the collaboration of an attorney, Roberta Katz (then general counsel of Netscape), and an historian and journalist, Philip Gold (then a senior fellow of the Seattle-based Discovery Institute). After surveying the shambles of the present civil justice system, they concluded that specialized courts should be the way of the future.

But simply establishing medical (or telecommunications or computer or whatever) courts would accomplish little, were they to operate like ordinary courts. CORE courts would differ in three fundamental ways.

First, expertise would matter. Judges would be required to demonstrate a sophisticated understanding of their specialty, to include continuing education. Attorneys would also have to demonstrate their expertise before admission to a CORE court. Juries might be drawn from specially qualified pools. CORE courts would have their own experts, either on-staff or on-call; use of "hired gun" experts provided by the contending counsel would be minimized.

Second, the emphasis would be on resolution of the dispute, not winner-take-all lotteries. CORE courts would be "tiered," with in-house Alternative Dispute Resolution (ADR, i.e., mediation and arbitration) available, as well as judge-only proceedings. The parties would retain the right to a full-jury trial, but the emphasis would be on settlement before reaching that point. An additional advantage of official, as opposed to private, ADR services is that their decisions could be codified and used as precedents, binding or not.

Finally, CORE courts would be free to develop procedures and rules suitable to their specialties, within the parameters of the Constitution and the common law.

Obviously, these reforms won't come about overnight. But we do need to think and dream outside the jury box.

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Michael Arnold Glueck, M.D., is a multiple award winning writer who comments on medical- legal issues. Robert J. Cihak, M.D., is past president of the Association of American Physicians and Surgeons. Both JWR contributors are Harvard trained diagnostic radiologists. Comment by clicking here.


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