Kerry's Malpractice Reforms Would Do Little
Posted by Clark Venable on 10/8/2004
Kerry once again referred to the 'plan' he and his doctor-suing trial lawyer running will implement as tort reform. Declarations and Exclusions disarticulates his 'plan' nicely:
""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.""
"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.""
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