Personal Injury Law

The Hidden Motives of Medical Malpractice Lawsuit ?Reform?

By Steven M. Levin and John J. Perconti

All political observers are aware that there is often disconnect between the publicly stated reason for a policy and hidden motivations kept from the general citizenry. That is certainly also true about claims made by proponents of current efforts to pass so-called ?tort reform.? There remains an echo-machine that spreads information attempting to show a need for changes to the civil justice system?but a deeper examination shows that those reasons are little more than pretext.

Public Citizen recently discussed this problem. For example, the U.S. House member who originally sponsored the latest bill to take away victim rights (in the form of H.R. 5), explained that the bill is necessary to do two things: (1) prevent ?frivolous? lawsuits ; and (2) ensure that lawyers do not use the legal system to make enrich themselves instead of helping the victims in need.

But are those the actual motives for this legislation? Logic indicates they are not.

First, frivolous lawsuits are by definition not meritorious. There is no cash payout for merely filing a lawsuit. Instead, as our Illinois medical malpractice lawyers well know, there are huge financial barriers that must be overcome by the plaintiff themselves before the merit of any potential claims is properly gauged. It is only after those resources are committed that evidence and explanation are presented to an impartial jury who then decides the outcome of the case. Claims without merit already have no incentive to be filed?taking away rights of legitimate negligence victims will have no bearing on that.

Second, virtually every medical malpractice victim who has successfully filed a lawsuit will quickly explain the value and benefit acquired by holding the wrongdoer accountable for the losses they incurred. In fact, the sponsor of H.R. 5 himself appears to understand the value, as he filed a lawsuit himself following a car accident. In the suit, the Congressman sought damages for the physical injuries and mental pain he suffered. He specifically asked a fair and impartial jury to award him recovery for the fright and distress he suffered at the time of the crash and that he claims he will likely suffer in the future because of the car accident.

Therefore, the esteemed legislator is clearly aware of the need to allow jurors to make these decisions without being restricted in their role by the one-size-fits-all generic decisions of Washington D.C. legislators.

Full post as published by Illinois Medical Malpractice Blog on March 17, 2011 (boomark / email).