Doctor, Doctor Gimme the News: the Kerry Cure for Malpractice Blues

Business Insurance magazine reports on statements today from the presidential campaign of John Kerry favoring “'meaningful but enactable' medical malpractice liability reform":

'I bet most people in this room don’t know that there is a policy,' said Chris Jennings, president of Washington-based Jennings Policy Strategies Inc. Mr. Jennings said that Sen. Kerry’s policy would focus on preventing medical errors and promoting patient safety but would require that malpractice claims be reviewed by medical specialists to ensure that a 'reasonable grievance exists.' Mr. Jennings said that lawyers who brought three frivolous medical malpractice claims would be barred from bringing further claims, and mediation—rather than litigation—would be an option for all medical malpractice claims. In addition, punitive damages would be barred in all medical malpractice cases except those involving 'reckless indifference to life,' said Mr. Jennings, a former adviser to President Clinton who now serves as an unpaid adviser to the Kerry campaign.

Here is the related policy statement posted on the Kerry campaign's official site, with underscoring added by Decs&Excs:

Help Reduce Medical Malpractice Premiums. As president, John Kerry will require that a qualified specialist certifies a medical malpractice case's merit before it is allowed to move forward. He will also work with states to ensure the availability of non-binding mediation in all malpractice claims before cases proceed to trial. John Kerry will make the system fairer for doctors and patients alike by preventing and punishing frivolous lawsuits. Lawyers who file frivolous cases would face tough, mandatory sanctions, including a "three strikes and you're out" provision that forbids lawyers who file three frivolous cases from bringing another suit for the next 10 years. John Kerry also opposes punitive damages - unless intentional misconduct, gross negligence, or reckless indifference to life can be established. Finally, John Kerry will work to eliminate the special privileges that allow insurance companies to fix prices and collude in ways that increase medical malpractice premiums.

There appears to be little here that is actually new.

♣ Pre-filing certification is already required in some states, and there is nothing here to suggest any safeguards to ensure that the reviewing doctors are themselves objective and reliable. Under current law a medical malpractice case is generally not viable without at least one expert witness who will opine that the defendant doctor fell beneath accepted practice standards. Pre-screening may simply require the plaintiff's attorney to find that expert sooner rather than later.

♣ Most courts encourage mediation in all cases, not just medical malpractice claims, in an effort to reduce crowded courtroom dockets. Mediation is almost always a preferable alternative to litigation, but the quality of mediators is variable and resolution always depends on both sides taking a realistic approach to the claim. There is, sadly, no way to legislate reason or good sense if any of the parties or lawyers don't have it to begin with.

♣ The proposal for barring attorneys who file multiple "frivolous" suits is likely to prove illusory. "Frivolous" is a high standard, generally requiring a showing that no reasonable attorney would ever have believed that the claim had merit. If a pre-screening requirement is also in place, the allegedly frivolous advocate will likely be able to escape by the simple expedient of having "reasonably relied" on the opinion of the reviewing doctor.

♣ In many states, the proposed changes to punitive damage law would be no change at all, while in others a "gross negligence" standard would actually expand punitive damage claims. Under current California law, for instance, "negligence" no matter how gross will not support a claim for punitive damages, which are permitted almost exclusively in cases of intentional wrongdoing and "despicable" conduct.

These proposals are likely to be greeted with skepticism at best in the insurance and professional negligence defense community, particularly coming from a campaign whose candidate for Vice President was a prominent trial lawyer. For background information on Sen. John Edwards' history and links to the national plaintiffs' bar you might start with this discussion and others at Overlawyered, or the continuing coverage to be found at the Manhattan Institute's PointofLaw.com. More favorable treatment of the views of plaintiffs' attorneys generally can be found, amidst other entertaining discussions, at attorney Evan Schaeffer's Notes from the (Legal) Underground. (See, e.g., this colloquy.)

More to come, no doubt.