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The writers of the Constitution intended the recourse for injury to be legal, not personal. This concept keeps me safe in my home and in the workplace. The angry, vindictive citizen who believes that injury has been done has the right to a day in court, where I can respond to the charges, rather than his coming after me with a gun. So I am not so sure that ‘malpractice reform’ will improve my lot.

AAOS Now

Published 8/1/2011
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David Seligson, MD

Malpractice reform?

Let’s not alter the fundamental principles of the law

“All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.” That’s how Section 14 of the Bill of Rights of the Kentucky Constitution reads. The Constitution was written in 1891 after 7 months of deliberation, and in my view, Section 14 is the successor to the Biblical principle of ‘an eye for an eye, a tooth for a tooth.’

David Seligson, MD

Should the rule of law be limited by a ‘cap’ on damages? What if the damage done exceeds a $250,000 limit? Medical bills for many injuries often exceed $250,000. My state constitution is very specific on this point. Section 54 states “The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”

Should the case first go to a panel of so-called experts? Not according to the Kentucky Constitution. The place an injured person finds remedy is in court. The review panel is usually a construct of politically correct colleagues whose opinions will doubtless be shaped by their own economic interests and personal connections.

An even more sinister proposal is the pathway test: follow accepted guidelines and your actions will be protected from litigation. The process of identifying ‘acceptable’ and hence ‘protected’ patterns of care is a certain route to destroying initiative and creative solutions to difficult problems. No, my Kentucky Constitution got it right: a jury of citizens should decide whether injury has been done for which recovery is appropriate.

Another attack on the current tort system says that the party that brings a lawsuit should pay the defendant’s costs if the lawsuit fails. Actually, plaintiffs and their lawyers pay plenty; it costs to file an action, do the research, prepare the case, and take it to trial. The plaintiff who loses a case loses it all. Increasing this loss by having the plaintiff bear court costs goes against the idea that lawsuits can be limited by “sale, denial, or delay.”

In our current system, the defendant doctor who wins a lawsuit actually loses too. In defense of an action against me, during a recess in the trial, I was talking with the insurer’s lawyer. I learned that for the lawyer, winning is everything. Insurers rate lawyers on their win/lose records, but they rate physicians on the costs of the defense—regardless of the outcome. My notice of noninsurability for the coming year indicated that the costs of my defense plus the costs of the settlement were higher than those incurred for other insured doctors. To control costs, it may be better to settle early rather than accumulate a big bill in following a case to a successful defense verdict.

This insurance approach is not unfamiliar. Drivers who have too many accidents, no matter who is at fault, will pay higher rates. That is why many drivers are willing to pay for a minor fender-bender out-of-pocket than to take it to the insurance company.

One approach to consider in controlling the escalating costs of defensive medicine, reducing the burdens of insurance premiums, and preventing the shame and humiliation of a malpractice action is to look at insurance practices as they affect health care. In the same sense that healthcare reform prohibits insurers from denying coverage for individuals with pre-existing conditions, underwriters could be prohibited from using win-loss calculations to determine insurance rates and insurability. Then, the defendant winner of a lawsuit would not automatically become a loser. More verdicts in favor of physicians would drive down premium costs by removing the incentive to settle early. It may be wiser to tinker with insurance practice than to alter the fundamental rules of law.

David Seligson, MD, is professor and vice-chairman of the department of orthopaedic surgery at the University of Louisville (Ky.). He can be reached at seligson@louisville.edu