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What the Medicolegal System Needs To Do

September 7, 2010

For decades, the medicolegal system has parasitically fed off the sympathies of juries for injured patients and attacked physicians and hospitals for perceived errors.  In many cases, no errors were committed, but the expectations of patients, families, and the lay public have been unrealistic, expecting real-life outcomes to match the results dreamed up on television dramas.  While there are certainly some poor performers in our industry, the financial penalties in the form of high insurance premiums and the practice of defensive medicine seriously limit the ability to provide improvements to the system.

Without medicolegal reform, quality improvement will continue to be stifled.  Unless, of course, one subscribes to the principle that “the beatings will continue until morale improves.”

There are two fundamental changes that should occur for medicolegal justice to be served:

  • We must demand to be tried in front of a jury of our peers.  It is usually argued that in the United States, we are all peers of one another.  However, this only refers to the socioeconomic class of individuals.  Because we are presumably classless in this country, then everyone is a peer of everyone else.  Thus, an illiterate uneducated homeless individual is the peer of a nuclear scientist on trial for some complex mathematical calculations that led to a toxic leak at a power facility.  It is clear that the socioeconomic concept of a peer is antiquated and ineffective at delivering justice.  Our peers are other healthcare practitioners who better understand the issues at hand and realistic expectations of healthcare.  Human biology is complicated enough that we cannot expect the uneducated to understand the concept sufficiently to make an informed judgement.  Would it make sense for anyone without any mathematics education to determine if a question on a calculus quiz was fair? 
  • We must also demand a Loser Pays system, which exists in nearly every other civilized country.  Through this mechanism, we would see a reduction in a number of lawsuits that appeal to plaintiff’s attorneys because of a sympathetic plaintiff with an adverse outcome from a complicated medical condition (likely to be misunderstood by a lay jury).

These paradigm shifts by the legal system would vastly improve the qualiaty and reduce the costs of health care.  However, they are usually resisted by U.S. trial attorneys, claiming that it would prevent justice for the lower rungs of society (who are usually already getting their medical care paid for by all of us).  Recently, a plaintiff”s attorney who specializes in medicolegal cases for plaintiffs, told me that he lies about his legal specialty when he is seen for his health care.  I recommend that we make these individuals be honest about who they are (so they know we are treating them fairly and without prejudice) by requiring them to sign a petition favoring these legal remedies when they are seen for their health care problems.  We could easily develop a list of who they are from the data available at www.Lawyers.com.

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