Tort reform necessary to solve defensive medicine

By Calvin S. Ennis, MD | Jul 12, 2016

This column first appeared in Medical Economics on June 25.

We were all taught in medical school that the way to treat and control disease is to identify the cause. No control is possible unless identification occurs.

This also applies to the social sciences. In order to control defensive medicine, we must first identify the root cause.

Contrary to the innuendos in the article, “Defensive medicine vs. value-based care (Medical Economics, March 25, 2015),” the root cause is not doctors: i.e. bad records, bad EMR, physician sloth or stupidity. The root cause is that defensive medicine is driven by lawyers who file endless meritless and frivolous lawsuits.

Why do they do this? Because there is little financial risk in doing so. Especially if many suits can be settled pretrial. The American Rule in turn drives this practice of champerty and barratry—each party is responsible for its own attorney’s fees. The rule protects the plaintiff lawyer from financial penalty.

On the other hand, the rest of the industrialized planet uses the English Rule—the losing party pays the prevailing party’s attorneys’ fees. This English rule forces plaintiff lawyers to reconsider who and what they sue.

Richard Anderson is correct—the solution is not medical reform but tort reform. This will not be accomplished by caps on damages, safe harbors, no blame compensation laws etc. Defensive medicine will only be contained by tort reform—replacement of the American Rule by a loser pays system.

Any other tort reform is a Band-Aid. Plaintiff lawyers should at least be subject to similar financial risk as other professionals. It is no accident that the U.S., with 5% of the planet’s population, employs 75% of the planets lawyers.

It’s called jackpot justice and not only drives defensive medicine, it causes unnecessary duplicate and defensive practice by virtually all-personal and business activity in the country.

We are all held hostage to the American Rule. Because of the English rule, doctors in my native Canada pay 60% less for malpractice insurance.

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