Elections have consequences. How many times have we heard that recently? Amid front-burner discussion topics such as the national debt, health care, and foreign affairs, Congress has already begun singing one of its favorite refrains: we need to end “frivolous” lawsuits to bring health care costs down. According to The Hill, the House Judiciary Committee is set to consider a tort reform bill sometime during the week of February 14th.
Proponents of tort reform favor caps on damages for victims of medical negligence say that damage caps–a limit of a negligent doctor’s liability–protect innocent doctors from so-called “frivolous” lawsuits. Retired Judge H. Lee Sarokin, who spent 17 years on the federal bench, pointed out the absurdity of that logic in a recent article on The Huffington Post:
“Under what other circumstances would we punish persons who have legitimate claims because others have filed frivolous ones? Do we reduce Medicare payments to honest doctors because others have made fraudulent claims? I suspect that Medicare fraud claims both in number and amount exceed frivolous malpractice claims a thousand fold.”
With respect to the filing of medical negligence lawsuits, Judge Sarokin also noted:
“The medical profession should be reminded that no medical malpractice case is begun or survives without one of its own members confirming that the defendant doctor or hospital is guilty of malpractice. Lawyers do not make those decisions; doctors do.”
Judge Sarokin’s final analysis on the issue of medical negligence:
“I recognize that it is an undisputed fact that doctors are giving up or changing the nature of their practice due to rising malpractice insurance premiums. But to me the idea of punishing those with legitimate claims and reducing the awards they would otherwise receive hardly seems a fair way to address the problem. The courts have a mechanism for dealing with excessive verdicts that has the merit of deciding them on a case-by-case basis predicated upon the evidence rather than some arbitrary cap. Better to place a cap on malpractice premiums and require the carriers to justify increases rather than reduce the compensation of those who have been injured. Of the three involved, the victim of malpractice, the doctor or hospital guilty of malpractice and the carrier insuring that guilty doctor or hospital, the victim should not be the first, but rather the last, to be punished.”
Ohio already has some of the strictest tort reform laws in the country, requiring victims of medical negligence to file their claim in court within one year of the alleged malpractice as well as damage caps and the requirement that all complaints filed in court be accompanied by an affidavit of merit. The affidavit of merit is sworn by a doctor to verify that the case is not frivolous.
Where do you think the political football of victim’s rights should end up? Do you think that people with legitimate claims should be penalized?