Edwards for Tort Reform?
Yesterday, Presidential Candidate John Edwards spoke at a health care forum organized by Families USA and the Federation of American Hospitals. He offered a comprehensive strategy for combating HIV/AIDS, including (according to this article):
“age-appropriate sex education, encouragement of needle exchange programs and expansion of Medicaid to cover H.I.V.-positive people before they get AIDS. He called for spending $50 billion over five years on H.I.V./AIDS treatment and using World Health Organization, rather than Food and Drug Administration, standards to speed the availability of new AIDS drugs.
Oh, if only Edwards had quit while he was ahead, took a bow, and left on that good note. He did not.
The former trial lawyer, who was consistently attacked in the '04 elections for his profession, also took this occasion to play into tort reform rhetoric about medical malpractice lawsuits. He did this by presenting a mixed message about medical malpractice litigation: Edwards essentially said that on one hand frivolous med mal lawsuits are a significant problem, and on the other hand that he doesn't think malpractice litigation is significant enough to contribute to either health care costs or to make a dent in cases filed through our legal system.
In one breath, he said:
“I think that the bulk of the problem is created when cases are filed in the legal system that should never be filed, and the results are years of litigation and costs that are incurred by the health care provider that should not have been incurred,'' Edwards said. ''A lot of that responsibility goes to the lawyers.''
And in another breath he says that his proposal “won’t significantly affect health care costs” and claims to “want to push back some on what I think is mostly insurance company-driven hysteria because I think the reality is that the cost associated with legal cases is well under 1 percent of our legal system.” (Emphasis added.)
Proposing a system similar to current state laws requiring “certificates of merit,” where lawyers must confirm the merits of a lawsuit before it is initiated, Edwards draws on what is common practice in many states and among all good attorneys. It only makes good sense, especially given the fact that so many medical malpractice attorneys work on a contingency basis, to ensure that the lawsuit you're filing is worth the effort and cost. As one blawger says:
These cases are hard fought, expensive, time consuming, and go on for years. As trial lawyers, we typically work on a contingent fee. That means that we aren’t paid unless and until there is a recovery for our client. Try asking your mechanic to service your car for a few years before he’s paid and see if he’s willing to do that. So now ask yourself who in their right mind would pursue a “frivolous” case? Right. Like I said, it really is that simple.
That said, I do have some initial concerns with some of the details in his version of the program. Instead of one expert, he’s for a requirement of two expert sign-offs. He also wants the experts to certify that the claim is not just meritorious but also “serious.” I’d like more information on what the definition of serious would be in this context, and I'd also be interested to see how the requirement of two expert certifications would impact plaintiffs of lesser financial means. An Oklahoma court said the following about a similar requirement:
Here, medical malpractice plaintiffs are singled out and must stand the cost of an expert opinion, which may range from $500 to $5,000 before they may proceed to have their rights adjudicated. In at least one instance, an affidavit of merit cost the litigant $12,000.
Eric Turkewitz presents a more detailed critique of the plan here, a very useful read.
But my main issue of contention comes from the way Edwards presents the proposal. The language he uses and even the context in which his proposal is presented (in a speech to the Federation of American Hospitals) panders to tort reform rhetoric and suggests that his goal is to police unscrupulous trial lawyers who are further harming a broken civil justice system. This could very well be his way of preempting the criticism he experienced in 2004--an attempt to separate the bulk of trial lawyers from the bad apples. But in so doing, he merely plays into the hype.
He claims to want to "push back" against insurance industry-driven hysteria, but is this the way to do it? By saying (according to the article) that “reducing malpractice lawsuits, as many have advocated, is a good idea”? Absolutely not.
At any rate, the goal should be not to reduce medical malpractice lawsuits, but to reduce medical malpractice itself (and as a result thereof to reduce the lawsuits). The concern should be with reducing medical malpractice while preserving access to justice for those injured as a result of their health care providers' negligence.
It would have been far more beneficial for Edwards to talk a little more about the insurance industry's role if he really believes that it has distorted our understanding of what's really going on with medical malpractice. Or, he could have just said nothing. (Sigh). Instead, he has taken the conversation even further off course and advanced the agenda to limit people's access to the courts.