Wednesday, October 17, 2007

Solution to Medmal Crisis: Torts

The 75% rate of verdicts favoring the defense in medmal is itself a mass tort of legal malpractice. That tort will help lawyers end the filing of weak cases that harass and anger docs. No doc begrudges a strong case. All docs want to settle if they made a mistake that hurt a patient. The path is tort litigation and a class action by docs against massive legal malpractice. A statute has to pass first, ending the litigation privileges and immunities.

This is the professional standard of due care for the lawyer. A recent law school grad, young, inexperienced, works as an assistant district attorney in the criminal law. He carries 100 cases. He has a small research budget for each. Each crime has several elements. Each element of a crime requires proof beyond a reasonable doubt (80% certainty). Each element requires not only proof it happened, but that the defendant intended each element to happen, again beyond a reasonable doubt. The prosecutor must often overcome pro-criminal bias in the jury of downtown courts. They make about $50K a year, for 80 hours a week.

The criminal prosecution wins in about 75% of cases. Why? They only bring strong cases. As to settlement of cases. Again, they plea bargain about 95% of cases, their equivalent of pre-trial settlement. Again, why such a high success rate? They only bring strong cases.

Contrast to medmal. Very experienced mid career people. They make $1 mil a year, carrying a few cases. They have research and investigation budgets with 6 numbers in them. There are 5 elements to a medmal case. No intent need be shown, only that it happened. The burden of proof is lower, the preponderance of the evidence (51% certainty). They have the victim sitting in court for the jury to pity. They select them to be cute and appealing. In medmal, over 75% of verdicts go to the doctor. Ugly people, smokers, uncouth people, even if clearly victims of medmal, need not apply. In judicial hellholes, like Philly, the rate of defense verdicts is 70%. Why? The overwhelming majority of cases are weak or frivolous. These fractions apply to even cases that never make it to trial. They fade away, as their hopelessness and injustice becomes apparent.

Why are these legal malpractices permitted? Because one cannot easily sue the opposing lawyer. One must overcome an impossible burden. One must have evidence the lawyer filed the claim knowing it had no validity. The claim must have an improper motive, such as to injure the defendant, rather than compensate the client. Short of a written confession or a videotaped conversation, these are impossible to prove. Due to their virtual immunity from legal malpractice claims by the other side, the product of the medmal lawyer remains weak and defective.

So they file 5 claims. Only one has merit and wins. That is enough to cover their costs and make a profit for a year, especially if they go after deep pockets such as a hospital.

Lawsuits will end the medmal crisis, help the lawyer profession improve, and markedly deter weak cases. This are impossible now. A law would have to pass to allow them.

One would not want to file frivolous lawsuits against the other side’s lawyer. So all elements of tort reform should be afforded them in new statutes. The doctor should not sue without a certificate of merit from a lawyer expert in medmal. The doctor should not be able to name uninvolved firm partners, etc. The doctor should not be allowed to shop for friendly venues.

This law bringing the benefits of lawyer malpractice to improve the performance of the profession will start World War III with our good friends in the legal profession. However, they will thank us later, when their performance improves from tort litigation.

They claim they have no duties to the other side, a crucial element of torts. That is just not true. Dozens of duties to the adverse third party exist in the Rules of Conduct, the Rules of Evidence, the Rules of Civil Procedure. The highest most reaches of the lawyer hierarchy support ending this lawyer immunity from accountability to the other side.


Samson Isberg said...

Mr Claus - this was one of the more original and thought-provoking commentaries on the med-mal crisis I have seen for a long time.

The reason why lawyers in America is so unbelievably well protected behind the constitution, to an extend that they can do virtually murder and get away with it, must lie with The Founding Fathers, a majority of whom were - yes, lawyers...

Supremacy Claus said...

Samson: The self-dealt immunity is nowhere in any constitution or even statute. The Supreme Court has granted the Supreme Courts of the states to regulate the lawyer. That means oppressed lawyers do not have recourse, either. All attempts at statutory accountability have been declared unconstitutional by the Supreme Courts of the states.

This suggestion may be an exercise in futility, unless:

1) Federal statute pre-empt all state appellate decisions. The aim would be to reduce the large numbers of weak cases. These increase medmal premiums, consume the time of the doctors, and increase the cost of defensive medicine. The federal government has a strong interest in ending weak cases. These are legal malpractice.

2) Federal prosecutors should try to prosecute the judges, because they are violating the separation of powers mandated by the Constitution.

3) Self-help remains an option when legal approaches fail. Boycott the person of the state supreme court judges. They are old, and need docs.