JK left this comment. Since many readers do not go through all the comments, I have taken db’s prerogative to reprint the comment (and say a word or two myself).

CJD,

I have read your posts on a number of number of blogs, I have have to say that you just don’t get it. You keep repeating that it is not the job of the legal system to improve health care. Well, we are talking about the medical malpractice system, NOT the legal system.

This is a distinction that you miss or choose to ignore. Currently, it is mostly centered in the legal system, which is why it fails.

The the most important goals of the med-mal system should be to remove, retrain, or otherwise restrict bad medical practitioners and to identify over all problems with health care. While compensating people who have suffered from malpractice is a goal of the system, it is less important than the others. That may sound harsh, but as patient (who has had doctors make mistakes), I understand what is more important.

I would much rather see malpractice be something that is not actionable at all (somewhat, but not exactly like the workers comp system). Set up committees of doctors to review cases of possible malpractice to determine:
1.If malpractice took place.
2.If it caused injury to the patient.
3.And regardless of the answers to the first two question, what disciplinary action, retraining, practice restrictions, etc. is appropriate for the practitioner in question.

If there is a finding of malpractice that caused injury, then the practitioner could be held liable for covering the resulting medical expenses. Pain and suffering could be compensated according to standard schedule. As for economic damages, if they could not be agreed upon by the parties, then that matter could go to the courts. (Of course we might want to limit recoverable legal fees to that which are reasonable and customary…. as determined by the same people who set the fees for medicade :>) )

As far as picking the doctors who would serve on these panels, make it requirement of their license that all doctors serve on them. This would put the emphasis where it belongs: on removing or retraining bad doctors.

Besides removing a lot of emotion from malpractice cases, this would have the advantage of getting at cases that would never make it in to court because there was no money in it. And it would let us learn form cases that weren’t technically malpractice, but were the wrong way to do things.

Secondly, I have to point something out that you, and most lawyers I have spoken with, don’t seem to get. When you sue someone who (for a lack of a better word) is not guilty, you do harm to them. Let me state that again. You harm them. Yet, I never see you advocation for compensating them in any way, not even in covering their legal costs.

No lawyer I’ve ever spoken with seems to be able to admit that. That arrogance is why much of the public views lawyers they way they do.

(And before you nitpick, I know “guilty” is not the most appropriate term for a civil case. I was using it in the moral sense, not the criminal sense.)

JK

JK really understands the societal perspective. While I might quibble with a few of the details (I would not include all physicians and I would include non-physicians on the committees), but now we are discussing implementation rather than concept.

The key point here is that medical malpractice, as currently practiced, has “recovery” as the sole rationale. It does nothing to help the majority of patients who deserve a judgement. It does nothing to improve practice, and may well worsen health care.

Bravo!!