Medical malpractice restructuring might arrive in another form

There isn’t a day that goes by without news that some state is getting creative on how to deal with medical malpractice reform.

It seems to almost have reached the proportions of an epidemic — what to do about medical malpractice cases, how to reform the situation so huge amounts of money are not paid out, how to make things easier for the medical profession and how to lower insurance costs and payouts. Wait. Something is missing from that picture. What about the victims?

In virtually any proposition relating to medical malpractice reform, victims are sidelined. They are living with serious injuries, or may have died as a result of medical negligence, and the state wants them to suffer more and get less in compensation —- because a doctor made a mistake and no one wants to pay out what that mistake was worth in damages. If people, including lawmakers, think the solution lies in reducing compensation to victims, there is something seriously wrong with the system.

Lately, there have been some rather creative propositions to deal with medical malpractice damages, including one from Arizona that suggests attorneys be certified as medical malpractice attorneys, before the could file a lawsuit. Additionally, the suggestion also calls for only specially trained judges to handle these cases. Good idea? Bad idea? It would certainly remove attorneys inexperienced in the field and who would only take on a case and refer it to a lawyer who could handle it.

Oregon has new legislation in place that lets doctors and patients, those with genuinely serious injuries, to discuss their situation and a possible resolution, prior to anyone filing a lawsuit. While it may not accurately be called mediation, it may be more along the lines of negotiation. Does it have potential? Only time will tell.
Recent articles and studies indicate the system in place to handle medical malpractice cases is seriously messed up; much like the U.S. immigration system, and we all know how much progress has not been made in that regard. Most disturbing though is that a Health Affairs study revealed that doctors spend a whole chunk of time in court, as opposed to caring for their patients. That’s a frightening thought. If they are in court defending their medical judgement, or lack of it, they are in court for a valid reason.

Oddly, they argue they are forced into practicing defensive medicine, which is a chic catch-all concept designed to deflect attention from the “real” issue —- medical negligence. Doing more tests, ordering more lab work or x-rays will not necessarily mean the doctor won’t still make a mistake and misdiagnose, fail to diagnose or diagnose too late. Nor does it mean they will not end up prescribing the wrong drug for the wrong person, the right drug in the wrong dose or the wrong dose for the right person. Complexity is obviously an issue here. Either the medical professional is on the ball, or they are not. If they make a mistake, they need to be held accountable for it.

One of the nation’s largest medical malpractice insurers, The Doctor’s Company, suggests the average doctor spends at least 51 months in litigation over the span of their career, resulting in no payout and costing them time lost in caring for patients. The issue here may then be that jurors are reluctant to find that doctors and hospitals are negligent even when malpractice has occurred.

The health industry and the insurance industry have spent hundreds of millions of dollars providing misinformation to the public in order to villainize people who seek compensation for injuries caused by malpractice. The spokesperson for the company also suggests the bulk of medical malpractice lawsuits are frivolous. Hundreds of medical negligence attorneys would vigorously disagree.

Florida and Georgia will attempt to completely overhaul the medical malpractice litigation system, by educating people about defensive medicine, said to cost the medical system close to $650 billion a year. Again, the real issue is making mistakes, whether there are lots of tests or not.

Who will fix the human factor in the practice of medicine? Who will clean up after medical negligence when a victim’s life has been irreparably destroyed due to a medical error? It won’t be the insurance companies. It won’t be the lobbyists who want to cap damages. It won’t be the lawmakers who think victims need less money to care for themselves because someone ruined their lives. It will be the medical malpractice attorneys holding a medical professional responsible for their mistakes.

Christopher Mellino is a Cleveland medical malpractice lawyer specializing in Cleveland medical malpractice cases cases in Ohio. To learn more, visit