Bob Franken

The Health Care Issues Keep Piling Up: What about Tort Reform?


With all the pushing and shoving going on with health care reform, there’s very little attention being paid to tort reform. Malpractice lawsuits always are near the top of any medical provider’s tale of woe. It’s a shame it’s not as controversial, so far, as the many other facets of health care reform. The screamers would REALLY enjoy yelling at some lawyers.

For the longest time, I thought tort reform had something to do with pastry. Silly me. In my view, it’s really an alias for removing a patient’s legal protection against shoddy medical treatment by curtailing his or her right to sue. It’s a long-standing dream of those who would prefer not to be so accountable for their deceptions, carelessness and incompetence. It’s not that the other side is all that angelic, either. That’s where you find the attorneys who want to keep those billable hours and huge contingency fees coming in.

It’s one of those issues that’s lurking in the background so far. Doctors and the pharmaceutical manufacturers complain that the fear of lawsuits and the bloated insurance premiums they must pay are huge reasons they have to charge exorbitant amounts for treatments and drugs.

It is true that one of the major contributors to the cost of any treatment is unnecessary testing. Physicians say they order every possible examination they can, no matter how redundant, to make sure they don’t get blamed if something — anything — goes wrong.

Where “First do no harm” used to be the first rule of the Hippocratic Oath, it seems to have been replaced with “First Protect Your A–.” Why? Because those mercenary attorneys are always lurking, looking for the dissatisfied patient. So this is a problem, no question about it.

Here’s where it becomes tricky. A lot of our medical professionals are sometimes negligent as all get out. Their unprofessional treatments can kill or maim. What do you do to those who cause such misery? I’ll tell you what: You SUE THEM! Make them pay for their destructive sloppiness.


It’s not that easy to prove malpractice. Here is the legal dictionary’s definition: ” MALPRACTICE n. An act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to his/her client or patient. Such an error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. However, malpractice does not include the exercise of professional judgment even when the results are detrimental to the client or patient.”

It is not all that easy to prove or disprove a “standard of professional competence.” “Negligence, ignorance or intentional wrongdoing” also have a high legal bar.

We all know, however, that in the real world, the crafty lawyer is not looking to prove his case at trial, but angling for a settlement beforehand. The doctors and the others, along with their insurance companies, are usually more than happy to comply because of the time, effort and money it takes to go full bore against what is often nuisance litigation.

Then why not take away this opportunity to abuse the system? Because the true medical victim needs to have a place to get payback. Besides, it’s probably a good thing that medical professionals and their sidekicks have the fear of financial ruin hanging over their heads, in the same way that the manufacturer needs some incentive to avoid careless corner cutting. It’s the same reason the financial professionals need to know that they can be dragged into court if they get caught fleecing their sheep.

If there is meaningful health care reform, and that’s sure a big “IF,” it’s entirely possible there will be some half-baked tort reform, in the name of cost containment. Let’s hope the right to sue will not be cut back so much that doctors and all the rest lose their fear of making mistakes.

When they do, someone pays. It’s the patient. Sometimes with his or her life.

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