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Monday, June 23, 2003The group is calling for the creation of medical review panels that would study the legitimacy of liability cases before they go to trial. "I want my peers looking at those cases, a board-certified surgeon looking at it, not just insurance company [officials], to decide whether I did any wrong and whether a claim should be paid," said Loyola, who said a previous insurer settled just such a claim against him last year. "A peer would look at the case and say, `You did nothing wrong,' and so you, or the insurance company, would be on stronger ground to fight the lawsuit," he adds. ...The Senate's 78-point plan for dealing with medical liability issues calls for the formation of malpractice review boards. The panels would consist of two physicians, two lawyers and a consumer representative. Alternatively, a malpractice bill in the House calls for only the study of such review boards. And, in addition, attorneys who file three frivolous lawsuits would be penalized: ... Adding to the lawyers' concerns are proposals to use the screening panels to shut down attorneys who frequently file malpractice claims. That's because the Senate bill, as now drafted, would stop any lawyer who had been shown to have filed three "frivolous" malpractice lawsuits -- as determined by the review panels -- from being able to file any future such malpractice claim in a Florida court. Roth calls the idea "blatantly unconstitutional." Sounds good to me. And why would it be unconstitutional to punish an attorney for abusing the system? UPDATE: Thomas Crown sends this explanation of lawyerly objections to the review board: The answer depends on what they're shooting for exactly, and to which Constitution they're referring. Assume for the sake of argument that we're talking about the U.S., as opposed to the Florida, constitution. Such a thing would be, off the top of my head, unconstitutional for the following reasons: * You deprive the attorney of the ability to practice his livelihood without hearing before a court of law. Most attorneys are licensed in only one state; cut them off in that state, and they're at least briefly out of a job. You are taking his property interest without giving him access to the courts. That is a classically unconstitutional act. Kinda. (I'll spare you talk about balancing acts and compelling interests in the desire to make a broad point.) I’m not an expert on constitutional law, but I’m pretty sure the constitution doesn’t guarantee anyone the right to a job. And the story didn’t say anything about denying the attorney the right to contest its decision in court. * You deprive his client of access to the courts. Assume for the sake of argument that there is a bona fide case -- either an easy win for the plaintiff, or a close call -- but the client can only find one attorney to represent him, and that one, who is not disbarred, is prevented from filing suit on his behalf: Yet another due process denial. If a client could only find one attorney to take the case, then I’d have to think his case wasn’t very strong. * You've created a parallel system to the one that exists to punish attorneys for abusing the system. Ok, this isn't unconstitutional under the Federal constitution (I think), but it's still a bad idea. This is what the Bar and the Florida Supreme Court are for: to kick out the lawyers who abuse the system. (Incidentally, that would make it unconstitutional under the Florida Constitution: The Supreme Court alone is vested with the power to disbar or otherwise punish an attorney qua attorney.) That’s part of the problem. It appears as if the system in place for dealing with abusive attorneys isn’t working so well. * Who sets the standard for "frivolous," exactly? And what is that standard? Unsuccessful? We've had cases that were good -- I mean, those doctors should have had their licenses revoked, and I'm not exaggerating (I'm psuedonymous, after all) -- and we lost. Most were overturned (for new trial) on appeal, but those cases were not frivolous -- we can't afford frivolous suits. That lack of clear standard means that there are, yes, more due process questions wrapped up in this. Deciding what is frivolous could become rather contentious. The article said that the review panel would be made up of doctors, lawyers, and a “consumer representative,” so there would be a wide variety of viewpoints at the table. But, I suppose a larger question is who appoints the review board? How hard would it be to keep it an impartial panel rather than a politically charged one? (Side note: Should lawyers who defend doctors, who lose at trial, be kicked out of court after three "frivolous" defenses, i.e., the doctor was plainly in the wrong? There's your equal protection problem right there.) A lost lawsuit isn’t the same as a frivolous lawsuit. A frivolous lawsuit is one that should never go to court in the first place because there’s obviously been no malpractice. For example, just getting rid of the current practice of suing everyone whose name appears in a medical record, regardless of whether or not their actions caused harm, would cut down significantly on the number of frivolous lawsuits. (Full disclosure: I’m fuming at the moment because my malpractice history includes a claim against me for ordering Tylenol for a patient who died three weeks later of a pulmonary emobolism. Even the most challenged malpractice attorney should be able to recognize that a dose of Tylenol three weeks before a pulmonary embolus didn’t cause the death. The suit was dropped by the attorney because he thought it had no merit. I just wish he had made that decision before filing a suit against me. And the claim remains on my malpractice record - without any explanation of just how little I had to do with any of it, or of how frivolous it was.) This has the feel of Orrin Hatch's suggestion about blowing up computers: An off-the-cuff, poorly thought-out response to a legitimate problem. Then maybe we should just put caps on noneconomic damages and call it a day. But lawyers don’t want that, either. In fact, they don’t like any of the suggestions to reform the system. And why would they? They know a cash cow when they see one. posted by Sydney on 6/23/2003 08:22:00 AM 0 comments 0 Comments: |
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