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Great post and great thread.

As an experienced emergency physician confronting the tort problem on the frontlines of medicine, I can add my view.

First of all, it is abundantly clear that the civil legal system is in need of serious fundamental reform.

In the past week, I've had two patients loudly threaten to sue me. This is not unusual. In one case, the patient had been in the ER for only a few minutes and I hadn't even seen him. In the other case, a patient disagreed with my medical opinion on a minor issue. I am astonished and disturbed by this shameless abuse of the medical profession. It is the sign of a civil legal system completely out of control. The same patients who threaten or actually sue myself or my colleagues ultimately rely on us to save their lives. This doesn't dissuade them from frivilous threats or lawsuits.

Thus far, I have not been successfully sued although I anticipate that I will be in the future. Most of my colleagues have been. All of them are good competent and caring doctors. I have yet to know of a case of clear malpractice among them.

Today, people usually sue because of a bad outcome in medicine and rarely due to known negligence. If obvious negligence has occurred, the case is usually settled and does not go to trial. When they sue, they usually sue EVERYBODY who had contact with a patient near the time of the bad outcome. The lawyer then pores over the medical record looking for something which might be questionable and might look negligent to an uninformed jury. Given the complexity and size of modern medical records, the lawyer can usually find something to question. A skilled lawyer then usually parades a slimeball medical "expert" (usually outside consensus medical opinion) in front of the jury. He contrasts the suffering of the "victim" and the rich rewards of a well-compensated physician. He then plays on the emotions of the largely medically ignorant jury to extract a large sum of money from an impersonal insurance company.

The specter of frivilous lawsuits hangs menacingly over physicians and extracts a terrible toll. It has poisoned the physician-patient relationship. The personal anguish felt by the accused physician is difficult to describe. Their professional and even personal integrity is questioned. They are forced to devote countless hours to defending themselves. The immense costs to the medical system are fourfold: the direct costs of legal defense/malpractice, the personal time devoted by medical professionals (physicians, nurses, etc.) to legal issues, the defection of capable physicians from medicine (to other fields or early retirement) and the enormous undefined costs of defensive medicine (additional tests and treatment as well as copious medical documentation).

There are a few necessary reforms which could make a difference:

1) "Loser pays" which would even the playing field and deter lawsuits of questionable merit. The cost SHOULD be borne by the attorney who has both the means to determine the merit of a case and the means to pay. There SHOULD be a cost to legally harrassing somebody.

2) Expert juries in cases requiring specialized expert knowledge. Today, jurors with the LEAST knowledge in the specified area are chosen.

3) Reasonable limits on punitive awards. The idea of an unlimited award is absolutely insane. This is the civil legal equivalent of "cruel and unusual punishment." I would even suggest that punitive awards should not be awarded to the plaintiff but should be treated as a fine and handled by the state.

4) The reform of class action lawsuits which enrich ONLY attorneys.

5) The end of "forum shopping" where attorneys can search nation-wide for a friendly venue.

6) Raising the standard of proof in civil lawsuits from "preponderance of the evidence" to one closer to the criminal standard of "beyond reasonable doubt." The extraction of hard-earned money needs to be taking as seriously as other punishments.

Some would also suggest limiting advertisements by attorneys which the UK already does. This does tread on free speech rights and may be uneccessary if fairness is instilled in the system with the above reforms.

I would suggest some interesting reading for those so inclined:

The Death of Common Sense by Philip K. Howard

The Collapse of the Common Good (How America's Lawsuit Culture Undermines Our Freedom) by Philip K. Howard

The Case Against Lawyers by Catherine Crier

The corrupt civil legal system is not only a direct and indirect cost to us all but a serious threat to our civil liberties.

All trial lawyers are not evil. A system which allows unfettered legal assault of citizens is evil.

Nearing a presidential election in which one major party's largest contributor is the trial lawyer lobby and their presidential ticket is headed by trial lawyers, this issue couldn't be more relevant.


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