Vail Valley Voices: Confusing the issue with facts |

Vail Valley Voices: Confusing the issue with facts

Keith Spero
Vail Valley, CO Colorado

VAIL VALLEY, Colorado – Several letters disagreeing with my recent op-ed about tort reform cited frivolous lawsuits and health care costs from “defensive medicine” as among the principal reasons to support tort reform. Trial lawyers, the tort system, punitive damages and contingent fee contracts were sav-aged by the writers, whose allegations were not supported by facts but are a testament to the suc-cess of the insurance industry’s unrelenting misin-formation campaign. All of the subjects raised in the letters cannot be dealt with in a sin-gle column, but a reply is warranted, and perhaps the principal points can be dealt with in two parts. Let’s start with an explanation of frivolous law-suits.

These are lawsuits that are brought even though the suit cannot be won under the facts or existing law, nor can it reasonably change the law on appeal. In other words, they are surefire losers. They do exist but are very rare and are dis-missed on motion (without a trial) under the civil procedure rules of both the federal and state courts, often with costs and attorney fees assessed against the offending party and counsel and paid to the defendant. Although one of the letters recently published argued against the contingent fee system, the fact is that since there are no fees paid if the plaintiff gets no money, it is a foolish attorney indeed who would file a frivolous lawsuit since it would cost both time and money, includ-ing potentially having to pay attorneys fees and costs to the other side.

Opposing parties in lawsuits never agree and often claim each other’s case is meritless. That is why there is a lawsuit in the first place. That does not mean the suit is frivolous. It means the parties are engaged in the method a civilized society has created to settle disputes without violence.

Most of the discussions about “tort reform” revolve around medical malpractice cases. Yet there are far fewer medical malpractice lawsuits actually filed than most people realize. The Har-vard Medical Practice Study of 1990 sampled 31,000 medical records for evidence of medical negligence. No doctor was deemed to have acted negligently unless two other doctors acting inde-pendently found such negligence. They found medical negligence in one out of every 25 cases. Even so, only 4 percent of those so injured brought suit. A recent RAND study of the growth in medical malpractice verdicts between 1960 and 1999 showed that there was no evidence that the level of jury awards has shot up.

Trial lawyers, litigators and contingent fees

One recent letter writer says he has two trial lawyers in his family and admits he is biased against all lawyers that work on a con-tingent fee. He says their No. 1 interest is themselves and they can win while the client may not. That statement makes no sense. The trial lawyer works under a contingent fee contract and does not get paid if the client’s case is lost. Since the contingent fee contract risks that the attorney does not get paid, few plaintiffs’ attorneys would take a case unless convinced that the case can and should be won.

A litigator generally works for the defense or for a corporate plaintiff and is paid by the billable hour (often $350 per hour and up) regardless of the out-come. I wonder if the letter writer’s relatives are lit-igators. Few, if any, injured potential plaintiffs could afford to pay an attorney on an hourly basis to handle a case that may take years. The contin-gent fee system developed for that reason. An attorney working on a contingent fee basis would not stay in business long if he or she took cases that had no basis. If your case is accepted on a contin-gent fee basis, you can be sure the attorney is on your side. As a friend often says, ” Tell me how he is paid, and I will tell you how he’ll behave.”

Another recent letter stated that ” tens of bil-lions” of dollars are wasted annually on unneces-sary medical tests performed by doctors trying to protect themselves ” in case their choice of treat-ment is questioned by a lawyer.” It states doctors do this “to eliminate diagnoses they know are not plausible in the given situation.” He says he knows this because some doctors told him so, and some have publicly stated this at recent town hall meet-ings. Some doctors, misled by the insurance industry, may do this, but I think most do not. All doctors take an oath that says in part, “First do no harm.” Doctors who order unnecessary tests are subjecting their patients to a risk of harm from excessive radiation and foreign substances that are inject-ed into the body, not to mention the patient’s time, money and inconven-ience. It is a terrible physician who would subject his patient to a needless test with its accompanying risks just for his own perceived benefit.

Why, then, do so many doctors say they do this? Could it be that some think that if tort reform is passed and jury verdicts are capped then their malpractice-insurance premiums will go down? And could it be that rather than violate the standard of care by ordering unnecessary tests that might just harm the patient, some just say they do in hopes of passing tort reform? And is it possible that some doctors actually do order unnecessary tests for which they get paid but as an excuse say they do so to protect them-selves from lawyers? Again, to quote my friend, ” Tell me how he is paid, and I’ll tell you how he’ll behave.”

And I would like to make a point about the standard of care required of doctors. Lawyers do not prescribe standards of care required of doctors despite the allegation of another letter writer to the contrary. The standard of care is created by doctors and taught in medical schools and hospitals. The standards are not static but change over the years with improvements and the development of new techniques, procedures and medicines. In a given case, the required standard can often be found in the medical literature, and none of it is written by lawyers. In a medical malpractice case, a plaintiff must have the testimony of a physi-cian to describe in detail the manner in which the defendant doctor fell below the standard. It must be proved to the jury that the doctor failed to do what a reasonably competent physi-cian would have done or not done in the same circumstance.

Our tort system is not broken despite the arguments of those mis-led by the insurance industry. Our tort system allows all Americans to stand on equal footing with anyone in the resolution of a serious injury dispute – be it with another individ-ual or against a powerful corporation. All you need is a good case. Our sys-tem may not be perfect, but tort reform is a cure that is worse than the disease.

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