True, errors are not malpractice unless you violate the applicable standard in your jurisdiction for malpractice. But malpractice does happen. The solution should involve targeting doctors who are repeat offenders for termination of their licenses, the prompt payment of claims which obviously involve malpractice, and a fair and just manner of scheduling compensation for victims so that the respective parties would at least have some sort of legal guidelines in settling claims.
From a lawyer's perspective, it is very difficult to properly evaluate a case before even getting to the first settlement demand. The client comes into your office, tells you her 'tale of woe,' and that's all you have to go on until you submit the case to an expert for evaluation. Often in the meantime, you'll have a deadline or a statute of limitations issue and have to file your case just to avoid that deadline (be it a winner or not, because contrary to your assertion, failure to do so could result in a malpractice case being brought against the attorney).
Compound that with the fact that in jurisdictions like Oklahoma, it costs the attorney (who usually foots the bill because sick/injured/dead people can't usually afford justice) a minimum of $5,000 for an expert's opinion just to file the case. Note that at least around here, we only have one malpractice insurer. That insurer will not insure any doctor who testifies or signs an affidavit against another doctor, so we either have to go out of state or go to a professional 'hired gun.' Getting a real, honest assessment of the case is damn near next to impossible.
As for something being 'frivolous,' while to you, it might appear to be frivolous, the attorney simply can't in all cases properly evaluate the case without first getting something filed and taking depositions and conducting discovery. He can't do that without shelling out some serious coin of his own to do so. So if you mean frivolous as in 'bad faith,' I'll bet that the number of those cases being filed is damn next to nil. But of course, just like with any other tort law, some losing cases will get filed. If the case does make it to trial, however, it cannot be said to be frivolous at all -- there are a lot of mechanisms preventing truly frivolous claims from making it to that stage and I'm convinced they work very well -- sometimes too well.
One of the conclusions of this 2006 study was that ". . .the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid." So who really should have more protections in the legal system? The folks who are killing and maiming through their negligence? Or the folks who are killed and maimed? Right now, clearly, the killers and maimers are better protected and are demanding more protection. I guess money talks.
http://www.hsph.harvard.edu/news/pre...s05102006.html
Oh, absolutely, I agree with you here. The administrative and litigation costs in settling malpractice claims are absurd. Unfortunately, both sides only favor outcomes which clearly stack the deck in their favor. For example, the insurance/physicians side wants to place hard caps on pain and suffering awards -- something which not only is morally objectionable in that it places a monetary value on human life, telling doctors and insurance companies when it's okay just to make a business decision and intentionally kill someone or maim them, it also disproportionately harms the most grievously injured patients by not affording them a proper level of compensation for their injuries.
Some things I'd possibly be in favor of (depending on the setup) would be accelerated discovery schedules, faster court dates, judges with medical expertise who are better equipped to wade through fact-intensive pretrial motions, etc. I had a friend of mine (a doctor) go through exactly the same thing. Didn't cost him a penny of course, just a lot of stress. That's why we have malpractice insurance. Turns out that the case (wasn't even that good a case) was filed by the attorney simply because the statute of limitations was about to expire and he had to get something filed to avoid malpractice on his own part. That stuff happens -- and when you have a client/victim who has twelve doctors on his charts, it's impossible, possibly even malpractice not to name every single one of them without knowing *precisely* what their involvement in the case was... and charts can be wrong.
I think in most cases, they do. In other cases, the client doesn't show up until the statute of limitations is looming and you have to get something filed to cover the bases. Still, in other cases, you really can't start to exclude innocent doctors from the case until you've had an opportunity to conduct discovery. Sometimes, due diligence doesn't happen until after the case gets filed because it simply cannot.
Threaded Mode
