Saturday, October 01, 2005

Malpractice Caps Not Enough

There is an ongoing debate about real and frivolous lawsuits, especially in medical malpractice cases, where the juries do not understand the charges and defenses, and many times award huge amounts of money to the plaintiffs that have no bearing on the culpability or the damage allegedly done. Typical citizens do not understand, and shouldn’t be expected to master the intricacies of medical care.

There is a growing belief that a “jury of our peers” has become outdated as court cases presented to “our peers” become increasingly more complex. It would make sense to have medical courts and subsequent juries made up of impartial experts rather then the hired guns of or for the plaintiff bar (or for the defendants).

According to a recent article in Forbes, Senators Mike Enzi (R-Wyo.) and Max Baucus (D-Mont.) and Representative Mac Thornberry (R-Tex.) have introduced legislation that would allow states to experiment with medical courts. The object being that victims of medical malpractice would receive justice – as would innocent doctors and hospitals.

We have special tribunals for patents, bankruptcy, taxes and other areas so why not malpractice? Then we wouldn’t have awards such as was made in a recent Vioxx trial where a ridiculous monetary award was assessed against drug maker Merck; some jurors admitted they had already made up their mind on “emotion” and BEFORE any testimony was presented. The guilty decision was made to “send a message to the big drug companies.”

Is this a great system, or what? Too many cases against the defendants are settled “out of court” for fear that juries may make monetary awards way beyond reason.

Too bad the long overdue changes in our “trial by jury” systems will probably be made along political party lines rather than by reason and common sense. Tort attorneys, of whom there are a growing number, do not want to change the system. Their showmanship wins juries who do not understand the case intricacies. Tort attorneys influence juries in ways used by what we old-timers called “snake oil salesmen” and preachers of “old time religion”. Juries have become more like an audience to a good sitcom, rather than intelligent, thinking jurists they should be. The fault lies in the system; not in those who make up the jury. Too many trials become nightmares for those who have to prove they are not guilty of charges no matter how frivolous the charges may be.

Caps on awards to plaintiffs in medical malpractice lawsuits, such as in legislation recently signed into law by our Governor in Springfield, are just a beginning in the changes needed to be made in our jury system nationwide. In the meantime, many will go out of business including doctors who can no longer afford the huge cost of insurance. Some affected will and already have, located in other states were the overall cost of doing business is less than the State of Illinois.

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