Medical malpractice reform

Neal Boortz talks about President Bush's proposal to solve the problem of increasing medical malpractice insurance costs. There are two parts:

• All class-action suits will be tried in Federal courts.


• A $250,000 cap on awards for pain and suffering, i.e. "non-economic" damages.

Boortz is all for the first but he has an issue with the second as he illustrates with the following example:

Consider this case. About 15 or so years ago two newborn males were horribly disfigured at an Atlanta hospital. A doctor made a horrible mistake during the circumcision process and literally burned the penises off of these two males. The parents of at least one of these babies took the doctor's advice and agreed to a sex-change operation. Since there was no longer a penis, the doctors just surgically changed this poor child to a female. (I lost tract of what happened to the other baby.) Now ... let's consider a medical practice action here. The question of negligence was not an issue. The doctor was clearly negligent .. open-and-shut case. The question was how much to award. Let's consider that award in light of Bush's reform proposals. This child would be entitled to have the cost of the sex-change surgery and the cost of any future hormone replacement therapies covered. The parents would presumably be compensated for the cost of all those male-oriented baby clothes they had bought.

What else would the child get? $250,000, that's what. Here we have a child, born male, who will never be able to father a child. A child who will have a confused sexual identity for the rest of its life. What is it worth to you to be able to have a child? What is your sexual identity worth? Hell ... let's cut to the chase. What is your penis worth?

At the time these babies were born their life expectancy was about 75 years. If you take that $250,000 and stretch it out over that time you would come up with a grand total of about $275 a month. That's it. That's what you get for having your penis burned off by a doctor and for never being able to have satisfactory sex let alone father a child. Do you think $275 a month is enough?

I agree that he has a point. There are cases where significant sums for such damages are warranted.

Like Boortz, I support the implementation of "loser pays." If you sue a medical professional and you lose the case, you are responsible for some or all of his or her legal expenses. Currently, many cases never come to trial because the professionals and the insurance companies know it's often less expensive to settle out of court than risk a really huge judgement against them in trial and pay the legal costs that come with defending the case to the end even if they win. With a loser pays system, I can see two immediate benefits:

• Medical professionals and their insurance companies won't be as reluctant to defend the case through trial if there's a good chance their defense will succeed. Some of those cases will be won by the defendants.


• Plaintiffs and their lawyers will be less eager to sue over just anything since they will now be liable for the defendant's legal expenses if they lose.

There is one potential problem with this system but I think there are also a couple of solutions, one or both of which will come into being naturally. The problem is this: If someone has a valid claim, they may be reluctant to sue since they could be out a lot of money if they lose, both for their own legal expenses and those of the defendant.

The solutions which I believe could naturally evolve out of this are:

• Legal firms will agree to pay the defendant's legal expenses if they lose. They will do this so that at least some suits will be filed since they'll be out of that business if none are. This will also further encourage legal firms to take only cases that they have a reasonable chance of winning, i.e. that are not frivolous.


• Some form of insurance will be made available, either to the plaintiff, his lawyers, or both, that will cover the costs if they lose. This insurance could be on a case-by-case basis, purchased by the plaintiff, his lawyers, or both. In this case it could be up to the legal experts at the insurance companies that are offering this insurance to determine whether or not the case is worth pursuing. Or it could be a blanket policy that the legal firm has purchased and pays regular premiums on. This would probably be best as it would then be up to the legal firm itself to determine whether the case was worth taking on. If they lose cases and the insurance pays out, their premiums would naturally increase.

Essentially this would be a case of the market providing its own solution to a problem, which is the ideal situation. Right now, since defendants are on the hook for a lot of money even if they successfully defend in court, the system is skewed the way it is in order to minimize overall expense. The problem is that it's still very expensive and the costs are ultimately passed on to you and me in the form of higher medical costs, higher medical insurance premiums, and reduced insurance benefits. I think that going to a loser-pays system, along with one or both of the solutions I presented above (and/or others which I haven't thought of) would go at least the better part of the way toward solving this problem.