Results matching “"certificate of merit"”

Healthcare and Tort Reform - PointOfLaw Forum

I have an opinion piece in the December issue of Metropolitan Corporate Counsel that addresses the litigation reform proposal, section 2351, in the House health-care reform bill. In substance, this piece is a more detailed version of my earlier New York Post op-ed on the subject, already linked by Walter here.

In this newer column, I note that "president's call for demonstration projects that try new ideas is welcome"; even though damage caps and other "traditional" tort reforms have been proven effective at lowering costs, other yet-untried reforms might do even more on that front -- and could also do more to "reduc[e] the time it takes to receive compensation from injury, weed[] out bad suits, and reach[] determinations on questions of negligence and causation more based on science than jury sympathy." E.g.,

The Manhattan Institute has called for changing the way the legal system handles settlements and attorney fees - through early-offer systems and offer-of-judgment reforms - that would reduce the incidence of weak suits (and improve compensation for high-quality, low-value claims). Public health researchers at Harvard have echoed Covington & Burling's Philip Howard in arguing for specialized health courts that take medical malpractice out of the traditional civil courts altogether.

Unfortunately, as we have documented on this site, the Pelosi bill "is more geared toward protecting the trial bar's interests than in giving real alternatives a try":

The bill authorizes funding for "early offer" reforms, but its restrictions on damage- and fee-limitations would preclude any workable early-offer ideas, including the Manhattan Institute's suggested reforms and alternative ideas developed by University of Virginia torts professor Jeffrey O'Connell. The bill has no provision to encourage health courts at all.

Instead, what the bill offers to fund are merely "certificate of merit" proposals, Section 2351(a)(4)(A). Although such proposals can help to weed out bad lawsuits - particularly if legislation calls for panels with robust authority to screen claims - in practice, certificate-of-merit reforms often amount to little more than requiring that a plaintiffs' lawyer obtain an affidavit from a doctor before proceeding to discovery. Since any decent med-mal claim requires expert witness testimony anyway, such reforms do very little indeed, which is why even plaintiffs' lawyer John Edwards embraced them as a presidential candidate.

The Obama White House puts to use the WhiteHouse.gov website -- its blog -- to rebuke columnist Charles Krauthammer by name for Krauthammer's column, "Kill the bills. Do health reform right." Krauthammer's case included an argument for step-by-step measures, starting with tort reform:

This is money -- the low-end estimate is about half a trillion per decade -- wasted in two ways. Part is simply hemorrhaged into the legal system to benefit a few jackpot lawsuit winners and an army of extravagantly rich malpractice lawyers such as John Edwards....[snip]

In the 4,000-plus pages of the two bills, there is no tort reform. Indeed, the House bill actually penalizes states that dare "limit attorneys' fees or impose caps on damages." Why? Because, as Howard Dean has openly acknowledged, Democrats don't want "to take on the trial lawyers." What he didn't say -- he didn't need to -- is that they give millions to the Democrats for precisely this kind of protection.

The White House's incoming communications director, Dan Pfeiffer, responds in a blog post, "Reality Check: Column Ignores Facts about Health Reform." On tort reform, he writes:

President Obama issued a Presidential Memorandum directing the Secretary of HHS to move forward with an initiative to give states and health systems the opportunity to apply for medical liability demonstration projects. Section 2531 of the House bill also includes a voluntary state incentive grants program to encourage states to develop alternatives to traditional malpractice litigation.

Yep. And the Senate bill includes a "sense of the Senate" statement expressing some support for state demonstration projects. The legislative provisions and the Administration's $25 million HHS grant program are the bare minimum needed to claim, "There is TOO tort reform in there."

Not that they support it.

Around the web, September 21 - PointOfLaw Forum

  • Med mal mini-roundup: "Medical liability insurer says caps law has stabilized malpractice rates" [MC Record, Illinois] Mixed verdict on Texas reforms [Mitchell Schnurman, Star-Telegram] Interview with Florida neurosurgeon & AANS president Troy Tippett [PNW] Tennessee med-mal filings drop sharply after state adopts pre-notice, certificate of good faith reforms [Day, first and second followups] Washington high court strikes down certificate of merit law [Day] "Georgia Supreme Court to Decide Constitutionality of Med Mal Damage Caps" [TortsProf, WSJ Law Blog]
  • Foundation for Fair Civil Justice (Bob Dorigo Jones) doing video and audio features on lawsuit abuse [Legal Reform TV]
  • "Point-Counterpoint: Repairing the Clean Water Act" [Federalist Society Engage]
  • "'Docket Science': Is it Time for an Inactive Docket in California to Manage Asbestos Workload?" [Cal Civil Justice]
  • "Looking at the Logic Behind Shareholder Class-Action Suits" [WSJ Law Blog]
  • "Ohio Pharmacist Going To Jail Over Botched Prescription" [Bull's-Eye Blog via Ohio Employer]

Around the web, April 18 - PointOfLaw Forum


John Edwards (again) on certificates of merit - PointOfLaw Forum

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."

Ark. high court strikes down certificate-of-merit law - PointOfLaw Forum

Late last year, as readers may recall, the Oklahoma Supreme Court struck down its legislature's enactment of a statute requiring that medical malpractice complaints be accompanied by a "certificate of merit" from a reviewing physician. We noted that although the certificate-of-merit idea is relatively weak stuff as liability reforms go -- even John Kerry and John Edwards saw fit to endorse it -- organized trial lawyerdom still seems intent on blocking it wherever it raises its head. Now the Arkansas Supreme Court, citing its Oklahoma colleagues with evident approval, has struck down the portion of its legislature's certificate-of-merit statute that calls for the dismissal of an action filed without such a certificate. In this case, the court's grounds for invalidating the rule was that it was procedural in nature, and the Arkansas constitution (supposedly) rigidly excludes the state legislature from interfering with matters of civil procedure. John Day comments here, and the opinion in Summerville v. Thrower is here (PDF).

Okla. certificate-of-merit law, cont'd - PointOfLaw Forum

Regarding my post below, Eric Turkewitz (New York Personal Injury Law Blog) writes in to take issue with how I characterized his reaction to the ruling:

Jubilating is too strong a word. The OK decision was based on the peculiarities of the OK constitution and is not applicable in other states.

NY, where I practice, has a certificate of merit law for med mal cases (signed by attorney, not doctor), which is the majority of my practice. I have no problem with it since consultation with an expert should take place anyway before suit, if possible.

Disclosing the name of the doctor, however, is another matter altogether.

Okla. high court kills certificate-of-merit law - PointOfLaw Forum

As we've had occasion to note a number of times in the past (e.g. here, here, and here) one of the weaker (though still useful) procedural reforms in medical malpractice litigation is a requirement that a plaintiff's lawyer obtain a "certificate of merit" from an appropriate medical expert before proceeding with a suit. So modest is this particular reform, and so broadly acceptable in principle to all but diehards of the plaintiff's bar, that even the presidential ticket of John Kerry and John Edwards was willing to endorse it.

Which still doesn't mean organized trial lawyerdom is going to sit by idly while it gets adopted by state after state. In Oklahoma, they've now persuaded the state supreme court, with only one dissenting vote, to strike down the certificate-of-merit law enacted by that state's legislature as inconsistent with the state constitution. George Wallace discussed the ruling while guestblogging over the holiday at Overlawyered, and Eric Turkewitz at New York Personal Injury Law Blog is among many trial lawyers jubilating at the news.

More: Eric Turkewitz writes to say:

Jubilating is too strong a word. The OK decision was based on the peculiarities of the OK constitution and is not applicable in other states.

NY, where I practice, has a certificate of merit law for med mal cases (signed by attorney, not doctor), which is the majority of my practice. I have no problem with it since consultation with an expert should take place anyway before suit, if possible.

Disclosing the name of the doctor, however, is another matter altogether.

Turnstile certificates of merit - PointOfLaw Forum

"Certificate of merit" laws are a popular reform proposal aimed at curbing the incidence of ill-grounded medical malpractice litigation. However, provisions of this kind vary greatly in strength, from the reasonably formidable to the hopelessly weak. In Colorado, there are proposals to strengthen the state's currently weak certificate-of-merit law. Here's a discussion in the Colorado Springs Gazette-Telegraph (PDF format, reprinted by Colorado Civil Justice League):

At present, that process is little more than a pass-through. It allows lawyers who file malpractice claims to tell the courts they've run the merits of a case by a "professional" for prescreening even if the professional never so much as looked at the case records and isn't credentialed to second-guess the medical specialist being sued.

HB 1305 would, among other things, ensure that the plaintiff's attorney reviews the merits of his claim with someone who meets the statutory standard of "expert witness" in the field in which the malpractice claim is being alleged. The bill also would make the lawyer give the court a list of all the medical records and other evidence that the expert reviewed, and the lawyer would have to back it all up with a sworn affidavit to the judge.

More on the issue here, here, here, and here.

Washington state replays the Florida malpractice debate - PointOfLaw Forum

A record amount of money is pouring into Washington state over two medical malpractice reform measures on the ballot. (Angela Galloway, "Dueling over medical malpractice", Seattle Post-Intelligencer, Sep. 8). Initiative 330 caps attorneys' fees in malpractice cases, non-economic damages caps as high as $1.05 million, allows voluntary arbitration of claims, provides for the admissibility of evidence of collateral source payments, and places limitations on joint and several liability. In response, the trial lawyers have put up a Potemkin measure on the ballot, Initiative 336, calling for an investigation of insurance fees, the creation of a state-run excess insurance program that will presumably replace those insurers who leave the state under the new law, a fig leaf requiring certificates of merit and barring "frivolous" suits ("frivolous" being defined narrowly enough that anyone filing a certificate of merit will never meet the standard), and, worst of all, the three-strikes rule for doctors sued for malpractice. If this sounds familiar, it's because Florida had the same debate last year (Nov. 29, Nov. 4, Nov. 2, etc.). Then, after both sides' Florida measures passed, AP noted about the three-strikes law:

Legal experts say the measure could let loose a flood of malpractice suits. Doctors say it will scare some physicians away from Florida while forcing others to reach quick malpractice settlements to avoid a "strike" against them.

"It has branded the state as probably the most unfriendly state for physicians," said Robert Yelverton, a Tampa doctor. ...

Lester Brickman, a professor of legal ethics at the Cardozo School of Law of Yeshiva University in New York, said the lawyers "trumped the doctors" with the three-strikes amendment, because lawyers will rush to sue in hopes doctors will settle to avoid a "strike" on their record.

"You'll see hundreds of these claims," Brickman said. "In the next 10 years virtually every doctor in the state of Florida will have been sued."

West Virginia docs - PointOfLaw Forum

Two rounds of malpractice reform by the legislature, in 2001 and 2003, have had a favorable effect, reports the Huntington Herald-Dispatch. The number of newly filed suits has dropped sharply; insurers are paying out only $1.06 for every dollar of premiums collected, as opposed to $1.82 in 1999. "The number of new permanent licenses issued by the West Virginia Board of Medicine, which dropped from 433 to 305 between 1997 and 2000, has increased since then. It rose from 305 to 377 between 2000 and 2004." Even real estate markets have benefited in Huntington, a regional medical hub, according to a local realtor.

Democratic State Sen. Evan Jenkins, who is also executive director of the West Virginia State Medical Association, said he thinks a 2001 enactment requiring plaintiff's lawyers to obtain a certificate of merit before proceeding "has had a significant impact on making sure that suits filed have merit". The 2003 round of reforms abolished joint liability, implemented a collateral-source offset, and put a cap of $250K on pain and suffering and other noneconomic damages.

Certificate of merit, done right - PointOfLaw Forum

As we've indicated before, "certificate of merit" malpractice reforms (a centerpiece of Messrs. Kerry and Edwards' plan) come in a number of varieties, ranging from the reasonably strong to the vanishingly weak. The editor of one magazine for doctors calls for the strong kind (Charles Lockwood, Contemporary Ob/Gyn, May 1):

Certify good faith. There are now 125,000 malpractice cases in the nation's court systems, 70% of which will be closed without payment. This is prima facie evidence of widespread abuse of "negligence" claims by plaintiffs' attorneys and their "experts." Plaintiffs' attorneys should be required to furnish the defense and court with a formal analysis of a case documenting area(s) of negligence. [emphasis added] The analysis should be drafted by a board-certified physician currently practicing in the defendant's field and in good standing with his or her professional body. Such a "good faith" certification would reduce the number of frivolous suits now clogging the system.

Anonymous experts: a reader writes - PointOfLaw Forum

Reader Len Ferrucci, M.D., of New Canaan, Ct. writes, in response to yesterday's post:

Connecticut has a requirement for a certificate of merit before a malpractice lawsuit can be filed. The law has no teeth because a doctor does not have to sign an affidavit. A plaintiff's attorney merely as to sign a certificate of good faith stating he obtained a certificate of merit. Not only does the lawyer not have to reveal the name of the expert, the certificate of merit does no have to be revealed.

Under a new law passed by the legislature, but later vetoed by former Gov. Rowland, a judge could review the certificate of merit if the defendant objected to the certificate. If the judge ruled the certificate was inadequate, the plaintiff would have another chance to submit a new one. The only problem was the defendant wouldn't have, under any circumstance, access to the certificate he objected to.

Anonymous medical experts, cont'd - PointOfLaw Forum

More on the issue of anonymous case-certifying experts, last discussed here Jul. 26: "Illinois is one of 14 states that require a physician to sign a certificate of merit before a malpractice lawsuit can be filed. It is 1 of 5 states that does not require the disclosure of the name of the doctor signing the affidavit." ("Court ruling allows physicians to know accusers, but...", Contemporary Ob/Gyn, Sept. 1). Can anyone tell us what the other four states are with such a provision? Well, that was fast: our own Ted Frank writes to advise me that the correct answer is "Colorado, Delaware, Illinois, Missouri, New York. The Colorado provision seems to be ambiguous whether the court is permitted to disclose to the other side; I haven't looked at the other states closely. Illinois' provision clearly isn't ironclad anonymity, either."

Dr. Chusid repeatedly claims that the Kerry-Edwards plan will supposedly "[r]educ[e] the risk of a physician facing a frivolous suit." But he refuses to say precisely what the candidates mean by "frivolous suit." Dr. Chusid tries to dodge the question by calling it one of "minutiae." But this is not trivia: it is the centerpiece of the issue, and is the difference between real reform and fake reform. Does the Kerry-Edwards plan address the lawsuits that doctors are most concerned about, or is it an empty soundbite to neutralize an issue where the two have a poor track record?

As I discussed earlier, when laypeople speak of frivolous malpractice suits, they are talking about the meritless suits that cost doctors money to defend and, worse, often unfairly tar doctors with malpractice verdicts through pseudo-scientific expert testimony and demagogic second-guessing; caps will reduce the profitability of such tactics, and thus reduce the incentive to engage in such suits. Dr. Chusid's counter-argument--that caps can only have an effect on the 2% of plaintiffs who reach a favorable verdict--relies on the assumption that caps would have no effect on doctors' ability to settle malpractice cases. But, in fact, under the current system, it is the threat of a large jackpot judgment that forces insurers to settle a meritless case. It's clear that caps remove this extortionate aspect of the settlement value of the case. Only if one posits that plaintiffs' lawyers are irrational will one be able to claim that caps will not reduce malpractice litigation. The fact that the plaintiffs' bar is feeding millions to politicians and advertising to stop the trend of caps is evidence that the plaintiffs' bar knows the adverse effect caps will have on Trial Lawyers Inc., and the benefits that will redound to the rest of us.

Still, Dr. Chusid insists that the Kerry-Edwards plan will stop "frivolous lawsuits." If this is so, and it can be done without the occasional problem caused by caps, perhaps it is worth a try. But the problem is the disconnect between the colloquial and the legal meaning of the word "frivolous." A case can be completely meritless, but not frivolous under the law, so long as it was not brought for purposes of harassment or other "improper purpose." So are the "frivolous lawsuits" that the Kerry-Edwards plan purports to address something meaningful, or is the use of the term a narrow equivocation? Dr. Chusid's refusal to answer the question perhaps gives a hint. Fortunately, we don't need to guess very hard. Senator Edwards co-sponsored a medical-malpractice "reform" bill, S. 1374, that addressed this very question. To qualify as "frivolous," a lawsuit must

(1) be presented for an "improper purpose"; and
(2) neither be "warranted by existing law" nor by a good-faith "argument for the . . . modification . . . of existing law"; and
(3) have no evidentiary support nor reasonable assumptions "based on a lack of information or belief."

Clearly, this is not the category of cases that is causing a malpractice crisis and runaway awards. The number of medical malpractice cases that are "frivolous" under this restrictive definition is extraordinarily low; the number of cases that Kerry-Edwards consider "frivolous" that are in the system today that are not addressed by existing laws is close to, if not precisely, zero. The Kerry-Edwards plan's attack on "frivolous litigation," unless substantially different than the legislation previously co-sponsored by Edwards, will do nothing to reduce malpractice litigation, much less the malpractice litigation that most concerns doctors.

But the Kerry-Edwards plan's reform is even more illusory than that. Recall that one of the planks of the plan is to require "certificates of merit" that a qualified medical specialist has approved a case. This is a low bar: to survive a summary judgment motion, a plaintiff needs to present expert medical testimony of malpractice. Moving the requirement earlier in the process does nothing to prevent attorneys from continuing to hire professional testifiers. Moreover, the "certificate of merit" effectively inoculates attorneys from any finding that they've filed a "frivolous" suit under the S. 1374 definition of "frivolous"--virtually the only exceptions would be presenting fake evidence to the "qualified medical specialist" or a forged certificate of merit. The "three strikes and you're out" plank of the Kerry-Edwards plan becomes essentially toothless, imposing sanctions on only the most foolish and incompetent of lawyers. The lawyer who wins $23 million by persuading a jury to adopt the fiction that cerebral palsy is caused by failure to perform a C-section remains unaffected.

The Kerry-Edwards plan announces that it will bar punitive damages "unless intentional misconduct, gross negligence, or reckless indifference to life can be established." Unfortunately for those who wish to claim that this is tort reform, in just about every state punitive damages require a showing of conduct that is intentional, grossly negligent, or reckless--and some states require a greater showing than that. It is simply not true, as Dr. Chusid claims, that this proposal will resolve "most" punitive damages.

The Kerry-Edwards plan seeks to repeal the McCarran-Ferguson Act. Why this is a short-sighted idea is far too complex to be explored in this space. But the concept is based on the myth that the malpractice insurance problem is a function of evil insurance companies rather than the billions insurance companies are paying to lawyers because of the malpractice litigation crisis. The main effect on malpractice insurance by repealing McCarran-Ferguson would be to "undermine the risk sharing industry's ability to classify and share risk", increasing the expected cost of insurance, and making health care more expensive for everyone.

We have no details on what the Kerry-Edwards plan mean by "non-binding arbitration." But doctors have reason to be wary. As Walter Olson noted, one Democratic proposal for non-binding arbitration in the House of Representatives, H.R. 1219,

turned out on inspection to include a kicker that would have pre-empted and invalidated all forms of alternative dispute resolution other than mediation--including arbitration programs that work well in some states in forestalling litigation--as well as all contractual barriers to suit.

Even if a party unambiguously won the arbitration, the losing party could reject it and proceed to trial--and exclude the findings of the ADR from evidence at trial. State taxpayers would likely end up footing the bill for the fruitless mediation because of the unfunded mandate that the mediation be "affordable" and "reasonably convenient." Such a bill would unambiguously make the malpractice litigation crisis worse. Recall that the benefit of caps was that it reduced settlement pressure on doctors; by reducing settlement pressure, one reduces the number of lawsuits. In contrast, Kerry-Edwards, by forcing doctors to go through an additional level of litigation through mediation, while potential damages remain uncapped, makes it more expensive to litigate, which increases settlement pressure. The prospect of increased settlement pressure will increase the number of malpractice lawsuits, and the problem will get worse.

The late-night-comedy stereotype is that Bush is shallow compared to Kerry as a candidate of substance. But when it comes to medical malpractice reform, it is Kerry who is resorting to what is at best an empty soundbite of "stopping frivolous litigation" and at worst a counter-productive proposal that will benefit noone but attorneys. The Bush administration has proposed a concrete plan that will reduce malpractice insurance rates, end the malpractice lawsuit lottery, reduce unfair malpractice litigation, and, by thus decreasing the number of good doctors forced to leave practice, improve medical access for the public at large.

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