On Health Care and Lawyers

Dave Budge has had an interesting discussion with Touchstone about universal health care, and the costs of health insurance. I am for universal health care just as soon as we get that perpetual motion energy source going too. It's a great idea, but making it work seems to defy reality.
But my comments here refer to a quote about some possible solutions. Specifically:

. . . 4) Reform malpractice lawsuits, at the very least, by requiring an affidavit from a medical professional that actual malpractice has occurred, and by allowing insurers and customers to enter voluntary arbitration agreements.

5) Suspend the medical licenses of negligent physicians on the first offense. This should not, by the way, be an AMA responsibility. We want this decision to be made by some body independent of the AMA, whose primary goal, of course, is to protect doctors.

In Montana, like a lot of states, we use the Medical/Legal malpractice panel to evaluate suits. If the panel feels that there was malpractice, then the plaintiff is given a letter of right to sue. Should the panel find against the plaintiff, then the plaintiff has to sue without the letter. Big Deal.

The first thing that needs to be done with regard to malpractice suits is to admit that medicine is as much art as science. In science, you have to control for the variables. In medicine, there are approximately 6 billion variables, or the total population of the planet. Everyone can react differently to the same procedure.
Sure doctors wear the white lab coat and are well versed in physics, chemistry, biochem etc. But like all of these stupid commercials telling us to see a doctor about a condition that we probably don't have, in order to determine if we should get a medecine that we don't need, there are a string of caveats that follow at the end of these commercials that warn of side effects. And those are only the ones of any statistical significance.

Let's start out with the assumption that most doctors are professionals, using their best professional judgment. Now let's throw in the exceptions; the doctors who are drunk or stoned (they are human after all), so how do you resolve treating them all the same in a court of law? Beats me.

The cure for the malpractice litigation may lie in the imposition of penalties and lawyers fees. For instance, your child has been born with brain damage. You are in such anguish, you want to make someone pay for the terrible tragedy so you sue. But the fact is, sometimes, some really awful sh*t happens. It's really nobody's fault. Now if the doctor was coming straight from the jail where he had just been arrested for DUI, you probably have a good case.

The old standard used to be "Gross negligence" in order to recover in a suit. Now the standard really is can you convince a jury that your client needs to recover. I am thinking of the former senator from North Carolina who bought a seat from the proceeds of his suits against doctors for something that has since been proved to be totally not their fault.

But in order to begin fixing med mal, you need to look at who is making the money. And the answer is that the lawyers on both sides are. My limited experience in malpractice (against another lawyer for sending a guy to prison wrongly) is that the defense lawyers made a killing. I would send a letter to the opposing counsel, let's say one and a half pages. He would spend and hour and a half considering all of the legal issues at $250 per hour, another half hour drafting a response, and then include my letter back to me stating that he was in receipt of my letter. Why did he do that? Because he would charge a buck a page to copy it, when the real costs were less than 5 cents, or $501.90 in profit. What a racket.

Plaintiff's lawyers aren't much better. Typically, a lawyer will charge 1/3 to 1/2 as a contingency fee. Sure they bear all of the costs, but those are removed from the client's settlement first. I read somewhere that only 10% of plaintiff's suits pay out. That is why they get such high fees, in order to make up for the 90% that fail. This is grossly ineffective.

So, my solution is instead of universal health care, let's make national legal care for malpractice. Take malpractice out of the hands of lawyers looking for a killing and make it only possible for government lawyers to sue or defend med mal cases. You take away the profit motive, while still preserving the patient's right to recover for gross negligence. Sure, government lawyers would lack the incentive to fight to the death on every issue, but that may not be such a bad thing.

Could be just as effective if not more effective than anything else that I have seen for fixing the problem.