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John Edwards (again) on certificates of merit

As happened last time around, John Edwards is garnering some mostly favorable press attention by endorsing a "certificate of merit" prerequisite for the filing of medical malpractice suits. If the AP coverage is accurate, his latest thinking may include a couple of new details; in particular, he told a Families USA/Federation of American Hospitals/Kaiser Family Foundation gathering last month that he would require lawyers to obtain not one but two expert opinions before suing, something I don't recall seeing in his 2004 proposals (a quick search of Edwards's campaign website yields little detail about either his old or his new proposals in this area).

Here's what I had to say last time around:

Certificates of merit: Before a malpractice suit could go forward, under this idea, the lawyer would have to get a qualified medical specialist to sign off on it. Already in effect in roughly a third of the states, this proposal almost certainly does more good than harm. Its main effect seems to be to inhibit filings by amateur-hour lawyers who have little experience suing doctors but figure they'll give it a try. It does little to cramp the style of seasoned malpractice lawyers: Those with choosy case-selection standards already arrange for their cases to get a vetting beforehand, while those with laxer standards can retain rubber-stamp dial-a-medics who'll sign whatever they're asked to. (In Illinois, amazingly, the medical reviewers can even remain anonymous.) Not surprisingly, some of the states which already have certificate-of-merit laws, like Pennsylvania, are also states suffering severe malpractice crises. In a 1995 interview, Mr. Edwards himself suggested that this rule would not make much difference.

As we've noted on several occasions, certificate-of-merit proposals vary a great deal in strength, from many that are almost vanishingly weak to others that probably succeed in reducing the incidence of groundless suits. It will be a question worth exploring to what degree the two-expert idea moves Edwards's proposal along the spectrum from "weak" toward "strong". The AP story, by the way, quotes AAJ spokesman Bill Schulz as saying of the certificate of merit idea that for trial lawyers "generally speaking it's been a kind of nothingburger".

P.S. Eric Turkewitz, of the New York Personal Injury Law Blog, emails to say: "The idea of needing two doctors for a certificate of merit instead of one is, I believe, brand new. When I covered the Edwards position on the subject back on June 14th, it wasn't there."

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.