Reforms in medical care disclosure could make tort reform a moot issue
Memphis Business Journal, June 13, 2008
Written by Jeffrey S. Rosenblum
For the past several years, we have been hearing a lot about tort reform from the healthcare profession. Doctors have been complaining for years about how unfair our legal system is because it allows anyone to file a frivolous lawsuit against a doctor whenever they are not satisfied with the result of their medical treatment. Some people in the medical profession will tell you that these lawsuits are ruining healthcare and that the real villains responsible for this debacle are the trial lawyers that agree to file these suits. As with every issue, however, there is another side to the story. While there is much debate over tort reform, perhaps we should focus our attention instead to “care reform.”
Care reform would likely make tort reform a moot point. Moreover, honest disclosure of mistakes would likely minimize the number of claims filed against healthcare providers and would certainly reduce the amount of attorneys’ fees that are paid to medical malpractice defense lawyers each year. When an attorney makes a mistake, the rules of professional conduct mandate that he or she make full disclosure of this potential mistake to their client. When a doctor makes a mistake, however, there is no such disclosure requirement. In fact, doctors are allowed to admit their mistakes to each other behind closed doors in the form of what is called a “peer review conference” without ever having to share such admission with the injured patient or their family. In fact, under Tennessee law, any communication that is deemed to be “peer review” material, is privileged. The stated purpose for this protection is to encourage physicians to openly admit mistakes so that the overall administration of healthcare can be improved, but in some instances, this so called protection can keep the truth about what happened to a patient from that patient or their family.
Some hospitals have started to use a risk management strategy called “sorry works.” This is a program where the hospital staff will meet with a patient or their family in the case of a death or catastrophic injury and explain fully what happened to the patient. The hospital will then make a settlement offer, if appropriate, to the patient or family and the matter is many times resolved without a lawsuit ever being filed. Studies have shown that the “sorry works” program works.
Trial lawyers not only provide people with a way to obtain a financial recovery for medical negligence, they also provide families with the answers they deserve and sometimes don’t get from their doctors. If the healthcare profession would take it upon themselves to enact the same type of disclosure requirements that trial lawyers have been governed by for years, and would simply require doctors and hospital staff to give patients honest explanations when something goes wrong and then make fair offers to resolve potential claims, there would be no need for tort reform.
While some trial lawyers undoubtedly file lawsuits that should never be filed, the majority of good medical malpractice lawyers have their cases reviewed by competent experts before even agreeing to take the case, let alone file it. If anything, good medical malpractice lawyers turn down cases that could go either way because of the enormous time and expense that these type of cases require. We reject the vast majority of cases that come across our desk and will likely continue to do so for the reasons stated in this article. There is frankly no incentive for a lawyer to file a frivolous claim. Trial lawyers typically work on a contingency fee basis and will often times advance all of the expenses necessary to get a case to trial. Moreover, experienced medical malpractice lawyers are well aware that these cases do not often settle because there is usually a consent to settle clause in the applicable insurance policy that requires the defendant doctor to consent to a settlement before the insurance company can even consider offering any amount to settle the claim. There is a national registry that keeps track of medical malpractice settlements and doctors are required to report every instance where money is paid out on their behalf to settle a malpractice claim. There is also a requirement for doctors in Tennessee to report any settlement over $75,000 to the Tennessee Department of Health. As such, if money is paid out to settle a claim, the doctor will have a “blemish” on his or her record, which keeps many doctors from consenting to any amount being paid out on their behalf irrespective of whether a compromise settlement would be justified in the case. This “blemish” however, pales in comparison to the pain that a mother feels after losing a daughter due to the negligence of a nurse or doctor.
While Tennessee law traditionally has not required a plaintiff to have an expert to back up their claim before filing a medical malpractice claim, it has required the plaintiff to have an expert shortly after filing suit in most instances. In the typical malpractice case, the defendant healthcare provider will file a motion for summary judgment with the court shortly after suit is filed. This motion is simply a request for the court to require the plaintiff to submit an affidavit from a competent expert stating the healthcare provider deviated from the accepted standard of care and that the plaintiff suffered an injury as a result of this conduct. If the plaintiff is unable to produce such an affidavit within the time frame required by the court, the case will likely get dismissed without any further action by the parties. New legislation should be passed in the near future that provides even more protection to the healthcare profession.
A bad medical outcome does not necessarily mean that there is a good malpractice claim. Sometimes bad outcomes are unavoidable and in those instances, people should hug their doctors for doing everything they could do to help instead of suing them. However, in those instances where the bad outcome could have and should have been avoided and where there has not been an honest effort on the part of the healthcare provider to disclose the mistake and resolve the potential claim, trial lawyers provide a much needed service.