Wednesday, March 10, 2010
Page 6
IN MY OPINION
The Mystique of Tort Reform
By GERT K. HIRSCHBERG
A mystique of tort reform is just that; a mystique. Most people know what reform is. Few people know what a tort is. That’s because it is not definable. Even incoming first-year law students do not know why a first-year class assignment is torts. The term is simply not definable. It is considered a wrongful act that does not arise out of contract and for which the law allows a civil remedy. That would include nearly all activities of humankind, but it does not tell you what a tort is. It is puzzling that what is non-definable can be the basis for a political agenda.
The true but veiled purpose of the tort reform movement is to reduce or eliminate malpractice cases. Not as attractive a title as “tort reform.” Is tort reform selective or discriminatory legislation? It sure appears so to me. We do not see any ground-swelling “reform” movements involving accountants, lawyers, teachers, writers or even zoo-keepers.
Since “reform” is focused on, and only on, plaintiffs’ medical malpractice actions, let us analyze the problems the injured plaintiff and/or his or her attorney faces. They are monumental as compared to a plaintiff’s action in the garden variety lawsuit.
In short, a plaintiff’s medical malpractice lawsuit is not a cakewalk for the plaintiff’s attorneys. That is why most attorneys, even those who specialize in contingency personal injury actions, do not handle them. Why? Jurors do not like to see doctors being sued. Jurors abhor the prefix “mal,” yet the Book of Approved Jury Instructions 6.00 informs and instructs jurors that a doctor’s negligence is considered malpractice. Hence, many jurors have concluded that a doctor, to be liable, must have been guilty of some evildoing for which his or her license must be in jeopardy, or even his entire future.
While practicing law, I myself used to refer to this negligence tort as “therapeutic misadventure,” a cleansed but almost equally misunderstood term. Jurors looked upon their doctors, prior to the age of computers and specialization, in terms of that kindly old man, not woman, who makes house calls, frequently in the middle of the night. This profile resembled and was glorified on pipe tobacco ads and in movies as Doctor Christian, played by the now-largely forgotten Jean Hersholt.
If malpractice is such a descriptive term, why don’t we have lawsuits for mal-driving, mal-defective products, or mal-parental supervision? It is strange that the patient who slips or trips on a slippery floor in a doctor’s office can file a negligence claim, but once the patient enters the inner office for an examination or X-rays, the prefix “mal” must attach.
Further proof of jurors’ reluctance to favor doctors is the undeniable fact that hospitals, at least those which are not named after saints, but after streets, do fare much worse when sued for malpractice. After all, a business-type executive who is the administrator of a large business like a hospital is a far less sympathetic witness than your doctor.
The tort reformers inaccurately blame high insurance premiums on the proliferation of high verdicts. This, it was claimed, caused doctors to retire, abandon their practice or leave the jurisdiction. A single publicized verdict reported in the media is as misleading in the search for truth as the not guilty verdict was in the O.J. Simpson criminal case.
It is claimed that doctors were forced to practice defensive medicine. Not so. Malpractice is medical negligence, and unnecessary procedures deviate from the standard of care as much as over-treatment or over-testing.
Tort reformers reached their ultimate goal in California in 1975 with the enactment of the Medical Insurance Compensation Reform Act (MICRA). It passed constitutional muster in 1985 in Roa v. Lodi Medical Group, 37 Cal. 3d 920, but by the narrowest of margins. Similar legislation was recently thrown out in Illinois by its highest court in Lebron v. Gottlieb Memorial Hospital, 2007 WL 3390918.
The most stringent provisions of our MICRA legislation are a cap on general damages, i.e. pain and suffering, and tight control and regulation of attorney fees. It is now a crime and triggers State Bar disciplinary action for attorneys to evade or avoid the limitations for attorney fees.
The cap for general damages is $250,000. Be it remembered that MICRA was enacted in 1975. Hence the $250,000 limitation for general damages is now approximately $100,000 in 1975 dollars. Note also that the law does not describe caps for vehicular accidents, premises liability, or products liability. Recovery for a catastrophic injury should not depend upon its source. It was not fair that the patient who lost his healthy kidney rather than his cancer-infested kidney due to his surgeon’s negligence should be (and was) limited to general damages of $250,000.
The tort reform movement, though publicized in election years, has generic flaws. The Harvard School of Public Health has reported that only one in 15 of the more than 750,000 patients who suffer injuries in hospital each year file a lawsuit. Nationally, malpractice payouts rose about 4 percent, while malpractice insurance premiums have skyrocketed. Dartmouth College researchers have come to a similar result.
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