Debate Notes: Did John Edwards Mean to Say What He Said He Meant?

A gaffe is when a politician tells the truth.
-- Michael Kinsley

I was teaching a CPCU course last night (under the auspices of the good folks at Insurance Educational Association), so I missed most of the Vice Presidential debate. In a bit of auspicious timing, however, I arrived beside my car radio just in time for the candidates's exchange on medical malpractice reform. Insurance Journal has posted the relevant excerpt.

While I was listening, I thought there were some changes in John Edwards' articulation of his and Senator Kerry's proposals for bringing down medical malpractice premiums. Here are two of the central points in that proposal as set out at page 111 of Our Plan for America, with emphasis added:

To reduce injuries and deaths from inadequate care, our plan would:

* * *

★ Require that individuals making medical malpractice claims first go before a qualified medical specialist to make sure a reasonable grievance exists,

* * *

★ Support sanctions against plaintiffs and lawyers who bring frivolous medical malpractice claims, including a “three strikes and you’re out” provision preventing lawyers who file three frivolous cases from bringing another suit for 10 years . . . .

Here is what John Edwards had to say last night, again with emphasis added:

We do have too many lawsuits, and the reality is there's something that we can do about it. John Kerry and I have a plan to do something about it. We want to put more responsibility on the lawyers to require before a case of malpractice, which the Vice President just spoke about, have the case reviewed by independent experts who determine the case is serious and meritorious before it can be filed; hold the lawyers responsible for that, to certify that, and hold the lawyer financially responsible if they don't do it; have a three strikes and you're out rule so that a lawyer who files three of these cases without meeting this requirement loses their right to file these cases.

Note the changes here: On the one hand, Senator Edwards seems to be raising the bar on pre-litigation screening, requiring a certification that the claim is "serious and meritorious" before it can be filed, rather than simply a determination that the claim represents a "reasonable grievance." In contrast, the Our Plan proposal to knock attorneys out of practice who file three or more "frivolous" malpractice cases is supplanted by a practice of suspending attorneys who file three without "without meeting this requirement," an apparent reference to obtaining the pre-filing review and certification. So, if this was an accurate version of the Kerry-Edwards proposal, an attorney can be suspended for three omissions of paperwork, but is otherwise free and clear. This was a concern I noted in my original post on this subject:

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 California, current law requires that the plaintiff in a medical malpractice case give written notice to the prospective defendant at least 90 days ahead of filing suit. (The idea is that prior notice will increase the odds of settlement prior to the start of litigation.) If an attorney representing a malpractice plaintiff omits to comply with the pre-notice requirement, the lawsuit can still proceed unimpaired, but the attorney is reportable to the State Bar based on that omission. I have not seen any statistics suggesting that this is a major source of disciplinary action by the Bar; I suspect that the reports are few and the disciplinary actions even fewer. As restated in last night's debate, the Kerry-Edwards "three strikes" proposal looks to be equally toothless.

[Frivolous afterthought: In retrospect, it would have been a great Debate Drinking Game to have knocked one back every time Senator Edwards used the phrase "John Kerry and I have a plan ...."]

Comments

[Yeoman Lawyer]

Interesting item, I missed the debates and would not have realized this topic was addressed but for this.

[david giacalone]

Re "frivolous afterthought": Not without a designated driver. One could have gotten a vigorous workout lifting one every time G.W.B. said "it's hard work" last week.

Re: the Kerry/Edwards med-mal plan: We come back to whether it's just "frivolous" suits that we want to stop (their plan would probably do that, as long as the reviewer was objective and expert), or all "weak" ones. We need a great legal/policy mind working on that.

I am bemused by their notion of solving the problem by giving tax credits to cover medical malpractice increases (taxpayers pay), while eschewing caps on emotional damage (trial lawyers keep collecting). Of course, a lot of things bemuse me.