John Edwards has an op-ed in today’s WaPo on President Bush’s plan to limit medical malpractice lawsuits. Not surprisingly, Edwards, a malpractice attorney before entering politics, thinks the current system is basically fine and that the main problem is the insurance industry and bad doctors rather than frivilous lawsuits.
He does propose some logical-sounding reforms, however:
The most critical step is reforming the insurance industry. Today insurance companies use slow and burdensome processes to discourage both doctors and patients from filing legitimate claims. Worse still, these companies can fix prices and divvy up the country in order to drive up their profits. Even when companies don’t explicitly collude, they set their rates based on a trade-group loss calculation that they know other companies will follow. In any other industry, this kind of conduct would be subject to scrutiny under the antitrust laws. But an obscure 1945 law gives insurance companies a broad antitrust exemption. Because of the insurance lobby’s influence, Congress has even blocked the Federal Trade Commission from investigating insurance company rip-offs. These special privileges must go.
Next, we need to prevent and punish frivolous lawsuits. Most lawyers are responsible advocates for their clients, but the few who aren’t hurt the real victims, undercutting the credibility of the legal system and clogging our courts. For all his talk about frivolous lawsuits, President Bush does nothing to address them. He’s got it backward — instead of cracking down on irresponsible behavior and baseless cases, he’s targeting serious victims who win in court and are believed by juries.
Before a lawyer can bring a medical malpractice case to court, we should require that he or she swear that an expert doctor is ready to testify that real malpractice has occurred. Lawyers who file frivolous cases should face tough, mandatory sanctions. Lawyers who file three frivolous cases should be forbidden to bring another suit for the next 10 years — in other words, three strikes and you’re out.
Finally, we can reduce malpractice premiums by helping to reduce malpractice. The Institute of Medicine found that at least 44,000 people die from preventable medical errors every year. In medicine, as in law, a few people cause the most problems: Only 5 percent of doctors have paid malpractice claims more than once since 1990. This same 5 percent are responsible for more than half of all claims paid. One part of the problem is state medical boards whose discipline is as lax as state bar associations’. We need to provide resources and incentives for boards to adopt real standards on the “three strikes” model.
Why not do those things and enact basic tort reform? There’s no reason for them to be mutually exclusive.