Wednesday, September 9, 2009

medical malpractice reform

Isn't it funny how we organize our thinking around the notion of success by attributing success to those who obtain money. Ambulance chasers I have known will often esteem other ambulance chasers I know as successful because they "hit big" or "they made a lot of money." If you think about it these are attorneys who make big money because persons get physically injured--isn't there something slightly grotesque about that. And of course, big money breeds looks like we see a la Charles
you-have-enough-to-worry-about Binder

Back in the old ground-line telephone days my partner and I would pour through the new phone book to see who could afford in that given year, a prominent ad. We'd laugh out loud at the particularly garish yellow page ads, the one's in the shape of currency or the ones that held out the promise of big rewards for personal injury claims. The most offensive ads were always by the shitbags who were not real practitioners in personal injury who operate a sort of intake, legal services brokerage. Then there are the action shots of lawyers in pretend courthouse picturess--there's at least one group here in Your Hometown, let's call them WELK and WELK--two monkey-ass-ugly brothers who came out of nowhere and who advertise like no body's business. Frequently these ads feature the Welk brothers in their bad toupees posing in courtrooms (remarkably, not courtrooms where civil cases are tried) in town and striding triumphantly down the courthouse stairs--it's all made up! Another local attorney Tim Misery runs commercials where he takes "your phone call" while he sits in his barber's chair or while he's at the hardware store and he promises "he'll make them pay." Now, in my day as a Bad Lawyer I was in the court house of Your Home Town, and in the Court Houses of Our State and I never bumped into Mr. Misery--I bumped into a lot of minimum wage young lawyers (with minimal skills) who worked for Mr. Misery.

But, the ambulance chasers are hardly, what I want to talk about--because your Bad Lawyer is deep thinking about health care reform today. One of the proposals from the right (which I agree with) is medical malpractice reform--let's get out terms straight. Usually, when anything is called "reform" you can just as accurately substitute the word deform--and the same is true for what passes as medical malpractice "reform." Medical malpractice lawsuits have always been the target of litigation "reform"-ers--and, generally speaking the reform program is and has always been about fucking over victims of malpractice by creating expensive and restrictive obstacles to compensation. As a consequence the plaintiff's malpractice bar believes, rightly so--that most malpractice claims are worthless--or as they say, you gotta kiss a lot of frogs before you kiss one prince.

Malpractice happens, as I've related how my unintended "bankruptcy" advice supported a malpractice claim against moi--but in the area of medical negligence--to financially support a plaintiff's malpractice claim you require terrible injury, permanent loss or death. But the full blown med mal case is expensive, requiring acquisition of records, expert record review and a doctor in the specialty to testify that (a. there was a deviation from the standard of care; and, (b. the deviation in standard of care caused the injury. Let me tell you about Bob, Bob was having a cancerous lesion removed from his tongue. The anesthesiologist shoved the oxygen tube down the wrong pipe. Bob strangled to death. Clear case of malpractice? Sure. Problem: Bob was having a cancerous tumor removed from his tongue for the second time--in fact cancer surgeon was taking his whole jaw and other adjacent tissues, Bob was dying. Since Bob was in his 70s already he had already reached his life expectancy. What was the claim worth? Not very much.
On top of the requirements there are unforgiving procedural hurdles to bringing your medical malpractice action, in Your Home Town and in most jurisdictions around the country. The doctor's lobby's and malpractice insurers have already done a number on the laws. Here's the point, the big malpractice verdict is the rare exception to the rule. With statutory verdict caps (enacted by the legislators that your insurers and medical lobbying corporations purchased), and successful appeals, the "big hit" malpractice action is a rare thing. Roulette.

Is the better way? Let's do away with medical malpractice roulette. A fund should exist for injured parties to participate in. The rule of thumb should be liberal construction for claimants. The parties should be permitted to have their claims reviewed by fund-employed physicians for free. The fund should be supported by the health care dollar, not malpractice premiums--and claims should cover all losses over the lifetime of the injured party. Oh, there will be a role for the likes of the Bad Lawyers, but the public policy should be in favor of compensating. Penalties should be assessed against the dangerous medical providers in coordination with their professional licensing organizations.

Here's the big plus, fewer Bad Lawyers in cowboy hats and bolo ties.

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