Real Healthcare Reform: Kill the Lawyers

Bruce Bialosky
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Posted: Feb 08, 2010 12:00 AM
   Real Healthcare Reform:  Kill the Lawyers

Now that a stake has been driven through the heart of the omnibus healthcare bill proposed and drafted by the Obama-Pelosi-Reid Axis (with an assist from Henry Waxman), we can get down to real reform. The President has stated that he wants to work with Republicans. Then let’s start with the most obvious cost control factor – malpractice/tort reform.

There is some truth to Democratic claims that several of the proposed reforms are interlocking and thus to address one specific issue might be difficult to accomplish. However, this in no way justifies their ridiculous proposal, including its huge growth in the federal government and its invasive government panels.

Unfortunately, the Democrats ignored the biggest opportunity for cost reduction: eliminating spurious lawsuits and getting ambulance-chasing lawyers out of the medical malpractice business. It is also clear that this reform is not interdependent on other reforms.

Doctors spend an enormous amount of time and effort protecting themselves from lawyers and avoiding lawsuits. They order extensive, expensive tests whose only purpose is to protect themselves from lawyers, and pay outrageous malpractice insurance fees just to rid themselves of these predators. Once lawyers get involved, a doctor’s world is always turned upside down.

Consider what happens in these situations. A lawyer takes on a case for someone who has real or imagined harm. The lawyer has no medical training except for the knowledge they have gained from working on other lawsuits. They run up significant costs that they front for the client, and then pursue a legal remedy. Frequently the insurance company settles (makes payment) to the litigant to minimize outlays. If not, the case goes to court in front of a judge (i.e., a lawyer) or jury, neither of whom typically has any medical training. Either way, the lawyer is reimbursed all the up-front costs plus 33-40% of the remaining funds. The person filing the case is often left with less than half of the proceeds.

We need to stop entrusting these issues to unqualified people through a legal system established mostly to enrich the participants as opposed to the truly harmed. Lawyers have no special knowledge or expertise to determine harm in these situations and neither do judges. We have allowed this system to get out of control and we, the American people, must insist that if any change is made to our medical system it starts right here.

Toward that end, I have a proposal. We need to establish a separate forum to handle claims of medical malpractice. We must accept that as dedicated as our medical personnel may be, mistakes are occasionally made due to stress, confusion or just human error, and the people who are harmed should be justly compensated for those mistakes. In addition, there is occasionally a bad apple in the medical field whose care and concern for patients does not meet established standards. Those patients should be compensated for any harm done to them.

The proposal that I suggest is to establish a five-person panel. The panel would consist of two retired judges, two retired doctors and one retired, respected businessperson. There would also be a Medical Advocate’s office – skilled in the issues of medical procedures due to their exclusive focus on medical claims and disputes – that would represent the patient. The advocates would be salaried employees, much like a public defender or district attorney, with no direct financial benefit from winning the case. The accused, be it a doctor or medical facility, would be able to have their own representative to defend themselves against any charges.

Any outcome would be decided by the five-person panel. The panel would not only understand the law, but would actually be able to examine the charges made against the accused and provide an educated medical analysis of any harm done. The businessperson would be able to judge credibility of the business practices used and weigh the economic effects of the decisions being made. The result would be a balanced decision made with analysis of all the ramifications – medical, legal and economic. No longer would lawyers be profiteering on the backs of the medical system and the American people.

I realize that this proposal has little chance of being adopted. After all, the trial lawyers have their hands so deep in the pockets of the Democrats you might assume they were Siamese twins. Despite “reforming” almost all aspects of the medical system in a bill rumored to have ballooned to over 2,600 pages, the Democrats managed to merely “suggest” that the nation might consider a pilot program for malpractice reform.

The Democrats have to decide whether they care more about American people or American lawyers. They have to decide whether they want to truly control the costs of our healthcare system or just launch platitudes. Ultimately the American people will have to choose between their doctors and their attorneys. The two just do not mix, and the national interest is clearly not being served. If they decide for the medical professionals – as they should – the Democrats will need to make real change, or have real change forced upon them: retirement.