Medical Malpractice Arbitration
Currently, medical malpractice litigation takes too long, costs too much, is unavailable for some legitimate claims, casts too broad a net, and doesn’t efficiently dispense of bogus claims. To address those concerns, I propose that Utah should consider reform along the following lines.
Establish an arbitration system for smaller claims (under $500,000);
Appoint a medical malpractice administrator – who, then, appoints a qualified (MD-type) arbitrator;
The arbitrator reviews the medical record and determines (w/in 90 days) whether liability exists and damages were caused;
The amount of damages also could be arbitrated later (but, once liability and causation are found, the lawyers likely could determine damages);
De Novo appeals are available – but, if the appealing party doesn’t significantly change the outcome of the arbitration, he would owe the other side’s costs and fees.
Establish an arbitration system for smaller claims (under $500,000);
Appoint a medical malpractice administrator – who, then, appoints a qualified (MD-type) arbitrator;
The arbitrator reviews the medical record and determines (w/in 90 days) whether liability exists and damages were caused;
The amount of damages also could be arbitrated later (but, once liability and causation are found, the lawyers likely could determine damages);
De Novo appeals are available – but, if the appealing party doesn’t significantly change the outcome of the arbitration, he would owe the other side’s costs and fees.
posted by steve u. at 11/16/2007
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10 Comments:
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I'm involved in neither the legal profession nor the medical industry, but these reforms seem to make sense to me.
Some initial thoughts:
I agree with your concerns about the prelitigation panel process, which the doctors successfully lobbied to put in place years ago, but which is widely regarded as a joke. However, I have concerns about requiring people to have their claims arbitrated by a doctor, rather than heard by a jury. It might not surprise you, but doctors are leery about criticizing their fellow physicians. (One joke I've heard more than once: How do you know you have a good med mal case? You get a non-meritorious from the panel.)
This unwillingness to criticize a fellow doctor is why most med mal lawyers have to go out of state to get expert testimony, even on clearly meritorious claims.
Med mal cases already have major disincentives that are not afforded to any other group of defendants. There's the prelitigation hoop. A plaintiff is required to have an expert witness, or the case can't go forward. There's a cap on non-economic losses. Medical expenses already paid by a health insurer are not part of an injured person's recovery. Doctors already have the highest level of protection from lawsuits in Utah law, outside of governmental entities.
One last point: Because of the cap and the exclusion of paid medical expenses, I suspect that the vast majority of cases would fall within your $500,000 range. Your proposal would, effectively, do what IHC tried unsuccessfully to do a few years ago: force Utahns to arbitrate nearly all claims for medical malpractice. I don't know whether we will react to that any better this time than we did with IHC.
VoU,
Good points. Doctors are very leery to criticize other doctors in the same region. Thus, the pre-lit panels don't work well. I figure the arbitrator likely will have to be out-of-state.
Good experts cost around $10,000; because of that cost and others, the economics of med mal litigation dictate that there must be pretty significant damages (around $200,000) before a good attorney will touch it. Thus, some people with meritorious claims are denied justice, because of basic economics.
On the flip side, because of liability, lawyers don't want to risk not including any party that might be tangentially involved with the injury. Therefore, too many people are sued.
I would hope that members of the bar would work with me to figure out a solution. If you look at all the reform proposals that keep surfacing, it is just a matter of time until something passes; I'd like to work with stakeholders to make sure it is something good.
I'm not sure about your underlying assumptions (that you can get an expert for $10,000, or that most people won't touch a med mal case worth less than $200,000. By the way, who would decide whether a case was worth more than $500,000 under your proposal? Come to think of it, who would decide what evidence is admissible, what elements of a claim are compensable, and make other legal rulings?)
I do agree that the legislature and courts have already created major disincentives for bringing medical malpractice suits, not to mention attorneys' own self-preservation instincts. I suspect that basic research would reveal that relatively few med mal cases are filed in Utah. (I am more concerned about more costly suits by developers against cities, but I suspect that kind of reform wouldn't get through House leadership.)
I don't see a way around the "costly expert" problem that you say deprives some people of an ability to bring claims. Utah law requires an expert to pursue a malpractice suit, and I assume the legislature won't be eliminating that requirement. Unless you do, just adding an arbitrator will do nothing but add substantial expense for the claimant. (I suspect that is what would doom such legislation as an unconstitutional denial of access to the courts. Instead of a few hundred dollar filing fee, requiring the factfinder to be a paid doctor from out of state would in essence impose a "filing fee" of $5,000 or more, which doesn't fly under most state constitutions.)
It would help to hear specific examples of system failures. I'm sorry to be skeptical, but I have to wonder if the primary concern is injured persons, or if this is instead another pitch by the doctors' lobby because, in spite of their insistence years ago on the prelit panel, they still get sued occasionally.
If you really want to help doctors, why don't you look into predatory pricing practices of med mal insurers? There are ample studies showing that, after med mal "reforms" are implemented, insurance premiums remain unaffected, because they are primarily determined by investment (non)income.
P.S. We posted a couple of sincere suggestions this morning for p.i. lawsuit reform. They would be easy to implement (just cut and paste Idaho's statutes). How about giving them a look?
http://voiceofutah.blogspot.com/2007/11/2-lawsuit-reforms-that-really-are.html
VoU,
If you look at my record on legal reform, you might be willing to cut me a little slack on my motives. I think one would have to conclude that my legal reform bills have been consistently pro-citizen and pro-access.
The plaintiff opts into the system by agreeing that recovery will be capped at $500,000. For Defendant to opt in, if P didn't agree on the amount realistically at stake, a motion and hearing would be required. (At this point, I'm honestly not quite sure how the defense would opt in over plaintiff's opposition; I didn't allow defendants to opt in in the motor vehicle arbitration bill; maybe we end up there, but I initially like the idea that either side could opt in).
This only works, if the expert costs are significantly reduced. The arbitrator essentially becomes the joint expert. On legal issues, such as admissability, the administrator would make the call.
In some areas, like medical malpractice claims below a certain threshold, quick and dirty justice works best. Perfect justice is unaffordable and, therefore, illusory.
I appreciate the further explanation, but still don't see how the proposal would aid claimants at all, if that is supposed to be one of the goals. They are already required to pay for an expert, as they would be if it went to court, but having a jury decide would be a lot cheaper than having an expensive arbitrator decide. If you eliminate the prelitigation panel and expert witness requirements for opt-in claims under $500,000, that might provide some relief, although most claims probably would still retain them in order to make their case. I guess it all comes down to providing enough incentive to plaintiffs to make them want to go through arbitration voluntarily. So far, I'm not seeing it.
The auto arbitration was a good idea, particularly because there was no additional cost to either party. That's not the case with this one.
VoU,
I must not be doing a very good job of explaining. The prelit panel and the need for an expert would be eliminated. Thus, those costs and delays disappear. Plus, the arbitrator has to reach a decision in 90 days. What I want from the process is fairness, effeciency, less cost, and faster resolution.
Please stay involved on this one. We're still (grrr) tweaking Politicopia, to get it where we want it to be, so that we can have a good online discussion (on this and other topics). It's tough to do that on blogs, since each post starts to fade with every post put up after.
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