In a 1993 two-part article at a height of the liability crisis, particularly with medical "malpractice" lawsuits,(1) I wrote that rampant litigation had become a malevolent trend threatening to unravel the fabric of society and individuals. The trend has recently cranked up to high gear as attorney-litigators have found yet new venues for enacting disruptive litigation. Thus, it's time we revisit this subject.
The Health Care Problem
Armed with billions of dollars from settlements in the tobacco lawsuits and other big money cases, trial lawyers are seeking to discredit and take away many of the benefits of tort reforms adopted around the country in recent years. Fortunately, a new Texas study is providing facts to combat their campaign of disinformation.
With the definite resurgence of the medical liability crisis, a recapitulation of the AMA's campaign for the implementation of tort reform in the last several years is in order to better understand where we have been and where we are headed in our struggle for meaningful and substantive medical liability ("malpractice") tort reform.
The old saying goes that if the flak gets heavy, you know you must be over the target! The heated responses of both Drs. Dunsker and Carmel to my article suggest we have actually scored a bull's eye and hit the target. Perhaps, tort reform itself will finally come into the cross hairs of enactment soon!
While both the Patients' Bill of Rights legislation, allowing patients to sue HMOs in state court for unlimited damages, and tort reform, providing physicians judicial relief in medical liability, have stalled in the 107th Congress this year --- these intertwined problems of health care litigation will not disappear for long from the political landscape.
In the Fall 2001 issue of the AANS Bulletin, "A Profession at Risk---The Medical Liability Crisis," the editors brought forth the momentous issue of spiraling medical liability for neurosurgeons.
Indeed, neurosurgery has been a profession at risk for quite some time, and many American neurosurgeons are quitting early rather than becoming grist for the trial lawyers' mill. This medical liability problem is number one for U.S. neurosurgeons and the AANS, yet it's not so at all for the umbrella organization, the AMA, which politically claims to represent all physicians.
The proposed Patients' Bill of Rights is presently stalled in a congressional conference committee due to the tragic events of September 11, 2001. Despite its appellation, a misnomer, this legislation has nothing remotely to do with extending basic traditional rights of citizenship to Americans or of providing protections against medical rationing to patients.
If anyone is interested in reading about a physician (neurologist) who has learned the ropes of the court system and who entertains the reader with forensic medical tales, this is the book to read and savor. Although Dr. Klawans is a frequent medical expert witness for both sides of the versus, he does not hesitate to use the term "hired gun" for impartial medical experts and minces no words in describing the shortcomings of the tort system. In case after case, Dr.
This book is a thinly-veiled attempt to defend the status quo of litigation-on-demand - "better the devil you know than the one you don't." Essentially, it advises physicians to accept the system and conform to the rigors of legal imposition when caught in the net of a medical lawsuit. It defends contingency fees, the system which allows the attorney-litigators to keep as much as 40% of the malpractice award and in the end leaves the injured plaintiffs with only 20-30% of the original award.
In the early spring of 1995, the House of Representatives passed a bipartisan medical liability bill (tort reform) by a significant margin (247 to 171), despite a strong opposition by the trial lawyers. This legislation was a sweeping tort reform bill that would have gone a long way towards reforming medical "malpractice" and alleviating the adversarial and litigious climate in which physicians have been practicing medicine for the last three decades.