Do you support Tort reform if malpractice providers were showing a healthy profit?

NNguyenMD

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Of course I don't have any proof of this, but I'm just wondering how many of you guys would still support caps on noneconomical damages even if it could be shown that malpractice insurance providers were profiting well from their investment returns in the current economic recovery, and continually raising premium rates on doctors while enjoying healthy profit margins?

Where I come from we would call that stealing.
 

NPursuit

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NNguyenMD said:
Of course I don't have any proof of this, but I'm just wondering how many of you guys would still support caps on noneconomical damages even if it could be shown that malpractice insurance providers were profiting well from their investment returns in the current economic recovery, and continually raising premium rates on doctors while enjoying healthy profit margins?

Where I come from we would call that stealing.
The fact that over 80% of all medical tort lawsuits are bogus demands that legislation be put in place, regardless of the profit margins of insurance companies.

Dealing with them would be the next step...
 

biendesalud

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This is not exactly about about 'caps,' but the best tort reform is if the loser pays all legal fees. Currently, bogus cases that would lose get settled out of court just because the legal fees would be more than the settlement. If the defendent and the ambulance chasing lawyers risk paying both parties' legal fees by losing, they would be more reluctant to file suit. If the doctor actually does something wrong, they pay for it.
 
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NNguyenMD

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biendesalud said:
This is not exactly about about 'caps,' but the best tort reform is if the loser pays all legal fees. Currently, bogus cases that would lose get settled out of court just because the legal fees would be more than the settlement. If the defendent and the ambulance chasing lawyers risk paying both parties' legal fees by losing, they would be more reluctant to file suit. If the doctor actually does something wrong, they pay for it.
I am not in disagreement with you there.

But you have to admit, if an insurance company was engaging in the price gouging of doctors, that would not be cool.

In that case I'd be for more stringent regulation of the insurance industry, such as in California where the providers need prior appoval for premium rate hikes by the state elected insurance commissioner, and demonstrate insolvency and company competence ( they dont' allow hikes for companies that are too stupid to invest their money wisely) to justify taking more money from doctors. California has one of the best systems in place to control malpractice premiums, despite being a state were a large number of "bogus" lawsuits are filed.

They have a $250,000 cap on noneconomical damages, and engage in tight regulation of the insurance industry. There also limit the amount of money lawyers can claim from malpractice awards.

Of course, when it comes to settling cases out of court, all that stuff gets thrown out the window.
 
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NNguyenMD

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NPursuit said:
The fact that over 80% of all medical tort lawsuits are bogus demands that legislation be put in place, regardless of the profit margins of insurance companies.

Dealing with them would be the next step...
I think you make a good point, making the insurance industry a viable market place is a necessity for a rationale premium rate paid by doctors. The General Accounting Office and National Association of Insurance Commissioners have both called for mandated data collecting at the state and federal levels to acertain the precise trend of malpractice insurance trends, and both suspect that medical claims are the culprit to reducing profitability. Though they strenuously emphasize that there is no clear conclusion that can be made without more data.

But I am not one to rely on the good faith of a for-profit insurance company to promise that they're only charging what they absolutely need to do survive. You don't pay insurance to make a profit, you pay them to protect you, if they are being stupid with their investments, they don't deserve your money, thats where regulation at the state level would be an advantage for physicians. All rate hikes on doctors would have to be justified by showing the company hasn't been engaging in corporate malfeasance, and making reckless investments, and that the rate hike is necessary to maintain future solvency.
 

trinitrotoluene

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NPursuit said:
The fact that over 80% of all medical tort lawsuits are bogus demands that legislation be put in place, regardless of the profit margins of insurance companies.

Dealing with them would be the next step...
Then why cap damages? If the claims are "bogus," then they will be laughed out of court. If you don't trust lay juries, create expert "medical courts" that the Democrats--not the GOP--want.
 

freaker

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trinitrotoluene said:
Then why cap damages? If the claims are "bogus," then they will be laughed out of court. If you don't trust lay juries, create expert "medical courts" that the Democrats--not the GOP--want.

This simply doesn't solve the problem. All that is needed is one expert witness (i.e. a doctor) to testify that a medical standard was not met to get into court. A lawyer can search endlessly, and all he needs is one to bring the suit forward. In the meantime, you have legal fees mounting to defend the case. Having a medical "expert" backing his claims also safeguards a lawyer from any threats of reprimand.

On top of all of this, lawyers know that for certain claims, insurance companies are going to want to just settle, as it's less expensive than going to court and investing large sums of money in complicated legal matters. With punitive damages capped, insurance companies are going to have less to fear and be able to put up a defense in these cases on premise, hence limiting a lawyer's willingness to engage in them without reasonable merit.

I also agree that a loser-pays-all system would be ideal, but do so recognizing that this will likely curtail poorer people from bringing suits forward.
 
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NNguyenMD

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freaker said:
This simply doesn't solve the problem. All that is needed is one expert witness (i.e. a doctor) to testify that a medical standard was not met to get into court. A lawyer can search endlessly, and all he needs is one to bring the suit forward. In the meantime, you have legal fees mounting to defend the case. Having a medical "expert" backing his claims also safeguards a lawyer from any threats of reprimand.

On top of all of this, lawyers know that for certain claims, insurance companies are going to want to just settle, as it's less expensive than going to court and investing large sums of money in complicated legal matters. With punitive damages capped, insurance companies are going to have less to fear and be able to put up a defense in these cases on premise, hence limiting a lawyer's willingness to engage in them without reasonable merit.

I also agree that a loser-pays-all system would be ideal, but do so recognizing that this will likely curtail poorer people from bringing suits forward.
you make an excellent point, caping damages would make it much easier for the insurance industry to project their losses. In the 1970's, a similar crsis occured in terms of skyrocketing premiums in California, though a cap was in place, it wasn't enforced until several years later. However when it was enforced it facilitated the methodology in which the insruance industry projects losses. The more predictable they can figure out more much money they have to cough up in payouts, the more stable premium rates become. The high rates of the 1980's paid for the lower rates that was seen in the late eighties to mid nineties.

I am not against instituting a cap, though I think its an issue that has to be left to the states. California and New York are not Kansas and Minnesota, there is no "one size fits all" solution to this problem. A reasonable cap on non-economical damges thats under periodic adjustments for increased regional living costs and inflation is the best way to go if you're going to cap awards.
 

Bfriccia1

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I think that California also instituted insurance regulations in addition to their noneconomic damage caps. The insurance companies should shoulder as much if not more blame than lawsuits and jury awards in the current malpractice insurance crisis. Capping non-economic damages may not solve the problem at all if nothing is done to make sure that the insurance companies are justified in the setting of their malpractice rates. They may just take the increased revenue from these caps as profit and not pass it down to doctors at all.
 
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NNguyenMD

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Bfriccia1 said:
I think that California also instituted insurance regulations in addition to their noneconomic damage caps. The insurance companies should shoulder as much if not more blame than lawsuits and jury awards in the current malpractice insurance crisis. Capping non-economic damages may not solve the problem at all if nothing is done to make sure that the insurance companies are justified in the setting of their malpractice rates. They may just take the increased revenue from these caps as profit and not pass it down to doctors at all.
couldn't have said it better myself...

but I think the reality is if you're going to have more regulation, cost control with a cap on awards, and tort reform to reduce invalid lawsuits are going to have to happen in any type of reform legislation. Insurance companies won't sell policies if they don't think they can make money off of them, and so far it doesn't look like they can.

Call me the eternal optimist, but there's a number out there, or maybe there are a few numbers out there that can satisfy both sides of the issue.
 

dmoney41

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This is not exactly about about 'caps,' but the best tort reform is if the loser pays all legal fees.
That's a horrible idea. What happens when a big company's major negligence hurts me somehow? Any lawyer will tell you that no case is 100%, and if you lose, you're going to get socked with the bill for their fleet of top tier lawyers? That would make America basically justice solely for the rich and corporations (even moreso than you can say it is now).

The real solution to medical torts would be some sort of gateway board that can reject frivolous claims. Failing that, at least if we let the republicans use us as a shield for protecting businesses from torts (and let's be blunt, that's what it is - the obgyn is more sympathetic than some exxon guy) then it'll strip the medmal companies of their justification for extortionary increases in premiums, and then you can start looking at legislative smackdowns on them.
 

trinitrotoluene

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freaker said:
[Expert courts] simply doesn't solve the problem. All that is needed is one expert witness (i.e. a doctor) to testify that a medical standard was not met to get into court. A lawyer can search endlessly, and all he needs is one to bring the suit forward. In the meantime, you have legal fees mounting to defend the case. Having a medical "expert" backing his claims also safeguards a lawyer from any threats of reprimand.
Not true. Both sides would be able to present their witnesses, and the experts would rule. That's the way our system works: everyone gets their day in court. If "some trial lawyer" can only find a doctor supporting their case by scraping the "bottom of the barrel," the expert will be able to ferret it out. Period.

What I think is going on here is that conservatives have a fundimental mistrust of the legal system. Evil activist judges. Evil trail lawyers. Maybe its that fundimental dislike of "Equal justice for all."

freaker said:
With punitive damages capped, insurance companies are going to have less to fear and be able to put up a defense in these cases on premise, hence limiting a lawyer's willingness to engage in them without reasonable merit.
I want doctors and insurance companies to fear lawsuits. Doctors who engage in such terrible behavior that it warrents punitive damage (including myself should that happen) do not deserve to be in practice. Insurance companies that insure such doctors should pay for their mistakes through the nose. Think about. Insurers don't cover arsonists, wreckless drivers, and people who live on flood plains for a reason, right? Why do any different with doctors?
 

trinitrotoluene

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the best tort reform is if the loser pays all legal fees.
dmoney41 said:
That's a horrible idea. What happens when a big company's major negligence hurts me somehow? Any lawyer will tell you that no case is 100%, and if you lose, you're going to get socked with the bill for their fleet of top tier lawyers? That would make America basically justice solely for the rich and corporations (even moreso than you can say it is now).
Exactly. That is the Bush agenda. The courts are often the last refuge of the weak against the rich and powerful. It's about rigging the ballot box to subvert what is found to be just and fair in the courts.
 

freaker

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trinitrotoluene said:
Not true. Both sides would be able to present their witnesses, and the experts would rule. That's the way our system works: everyone gets their day in court. If "some trial lawyer" can only find a doctor supporting their case by scraping the "bottom of the barrel," the expert will be able to ferret it out. Period.
doctors?
Did you read my first post? 80% of the malpractice cases brought forward are found to be bogus and lacking any substantial evidence. Yet these cases are still brought to trial because there is not sufficient reason to throw them out given the testimony of an expert witness.

You say everyone should get their day in court. That's hogwash. Our legal system is set up so that only those who have a case with merit are given their day in court and ideally, to settle as many cases as possible in arbitration. And yet 80% of the med mal suits brought forward are garbage and rake up substantial legal fees. Yet the odds are high enough, particularly in specific jurisdictons, that if you get in front of that jury, they're going to pay substantially for a good sob story (Hey, juries are easy to manipulate, especially when science and pain and suffering are involved. They get you used to that idea in the first semester of law school).

And that's why these cases are brought forward. Because they pay handsomely. Take out the pay factor, and you have lawyers who are going to be more careful what they bring in the courtroom, effectively cutting costs. A little accountability on every end of this spectrum only makes sense.

You offhandedly made some remark about conservatives and their distrust of the legal system (hmm....wonder why, given the recent cavalier attitude of our Supreme Court in citing internatonal law in interpreting our Constitution(?), ignoring legal and historical precedent, usurping power normally reserved solely for the legislature...), when some of us conservatives almost joined the legal system. ;) :laugh:

As for tort reform, most bills involve far more than just capping punitive damages. To name a few, limitations on joint and several liability, constricting the statute of limitations, initiating periodic payment of damages, placing limitations on attorneys fees, and limits on venue shopping.

But bottomline: every state that has capped punitive damages has seen success in dealing with med mal.

Texas being a most recent example. As soon as the caps passed the Texas legislature, Texas Medical Liability Trust, which insures about 1/3 of Texas doctors, reduced their rates by 12%.
 

freaker

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So that's the Bush agenda? :rollseyes:


the best tort reform is if the loser pays all legal fees.
While the above system is used in the UK, I'm personally more of a proponent of a system requiring that plaintiffs pay for a defendant’s legal costs once a settlement offer is rejected by the plaintiff, if the plaintiff doesn’t subsequently receive an award greater than the settlement offer made by the defendant.

In other words, cases are discouraged from going to trial unless they really merit a trial. An attorney is going to think twice about bringing a flimsy case to trial in such a scenario. In addition, the defendant party is more likely to make a settlement offer (by not making one, he guarantees he will be paying legal costs) and that settlement offer is more likely to be a more reasonable settlement offer (knowing that if he sets the bar too low, he stands to lose substantially on legal costs if a jury awards damages).

Our society has grown ridiculously litigious, and I think it's about time something be done about it, though in as humane and as fair a way as possible.
 
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NNguyenMD

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freaker said:
So that's the Bush agenda? :rollseyes:




While the above system is used in the UK, I'm personally more of a proponent of a system requiring that plaintiffs pay for a defendant’s legal costs once a settlement offer is rejected by the plaintiff, if the plaintiff doesn’t subsequently receive an award greater than the settlement offer made by the defendant.

In other words, cases are discouraged from going to trial unless they really merit a trial. An attorney is going to think twice about bringing a flimsy case to trial in such a scenario. In addition, the defendant party is more likely to make a settlement offer (by not making one, he guarantees he will be paying legal costs) and that settlement offer is more likely to be a more reasonable settlement offer (knowing that if he sets the bar too low, he stands to lose substantially on legal costs if a jury awards damages).

Our society has grown ridiculously litigious, and I think it's about time something be done about it, though in as humane and as fair a way as possible.
Louisiana, on top of having a cap on punitive damages at $500,000, requires that all malpractice suits be pre-approved by a medical review panel composed of 3 doctors of the specialty being sued, an attorney appointed by the Supreme Court. Louisiana is another state that has been able to control the increase in premiums very effectively.
 
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NNguyenMD

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The United States General Accounting Office's Official Stance on the Impact of Caps

"Interested parties debate the impact these various measures (caps) may have had on premium rates. However, a lack of comprehensive data on losses at the insurance company level makes measuring the precise impact of the measures impossible. As noted earlier, in the vast majority of cases, existing data do no categorize losses on claims as economic or noneconimc, so it is not possible to quantify the impact of a cap on noneconimic damdages on insurers losses. Similarly, it is not possible to show exactly how much a cap would affect claim freuency or claims handling costs. In addition, while most claims are settled and caps apply only to trial verdicts, some insurers and actuaries told us that limits on damages woudl still have an indirect impact on settlements by limiting potential damages should the claims go to trial. But given the limitations on measuring the impact of caps on trial verdicts, an indirect impact would be even more difficult to measure. Further, state laws differ dramatically, so comparing their impact is difficult. For example, limitations on damges can vary drastically in amount, type of dmages covered, and how the limitations apply. Some states have caps of $250,000 on noneconomic dmages, while other states have caps up to several times that amount. Moreover, some dollar limit change over time- for instance, because they are indexed to inflation- while others do not. Some states apply the cap to all damages, including economic damages, and some apply the cap "per occurrence" of malpractice. That is, the total amount collected by all parties injured by an act of medical malpractice cannot exceed the cap, regardless of how many physicians, hospitals, or other health care providers may be partially liable for the injuries. In contrast, for example, Nevada's recently passed limitations on damages allow multiple plaintiffs to collect the full limit from any number of responsible defendants.
 

trinitrotoluene

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1) If 80% of all claims are "bogus", then you could point out 1,000+ examples for the record, maybe?

2) Even if you are right, 20% of cliams have merit. If a doctor inflicts $2 million worth of pain and suffering, shouldn't that doctor also pay $2 million in damages?

3) You didn't answer this question:

Insurers don't cover arsonists, wreckless drivers, and people who live on flood plains for a reason, right? Why do any different with doctors?
4) You didn't answer this point:

Both sides would be able to present their expert witnesses, and the obtactive experts on the pannel would rule. If "some trial lawyer" can only find a doctor supporting their case by scraping the "bottom of the barrel," the expert will be able to ferret it out.
5) Your arguement, "Juries are easy to manipulate, especially when science and pain and suffering are involved," doesn't hold for expert courts because the experts would have practical experence dealing with dying patients, managing pain, and complex science.

6) When the Senate ratifies a treaty--as provided under Article II--it becomes a part of our law. It must be considered in judicial procedings.

7) How is using the fear of manipulating juries to deprive injured victims due process not evidence of a fundimental distrust of the judicial system?
 

Bfriccia1

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freaker said:
Did you read my first post? 80% of the malpractice cases brought forward are found to be bogus and lacking any substantial evidence. Yet these cases are still brought to trial because there is not sufficient reason to throw them out given the testimony of an expert witness.
Yet the odds are high enough, particularly in specific jurisdictons, that if you get in front of that jury, they're going to pay substantially for a good sob story (Hey, juries are easy to manipulate, especially when science and pain and suffering are involved. They get you used to that idea in the first semester of law school).

Actually most cases with merit never actually face a jury and there are studies which suggest that not enough malpractice cases actually get heard. Also, the majority of malpractice cases do not result in a large jury award. Most of them are actually decided in favor of the defendants (the doctors). These multimillion dollar awards are actually few and far between compared to the number of cases that people try to bring forward, its just that the media makes a big deal out of each of them.
 

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dmoney41 said:
The real solution to medical torts would be some sort of gateway board that can reject frivolous claims.
This is the right way to do it, in my opinion. As a model for this, the US Court of Fed Claims currently serves as a gateway for vaccine immunization claims, and administers awards from a fund generated from taxes on vaccines. This was set up out of fears that the major vaccine firms would be sued out of existence, since a few percent of children will have adverse reactions. An experienced judge hears and administers the cases, no jury, no contingency fees for the lawyers (just court awarded fees). At the end of the case, the plaintiff could forego any award and restart the case in state court, but few do, as the winners already have an award in hand they can accept, and the losers have a federal judge's ruling in evidence they would need to overcome.

So this is a great way to handle this. But I doubt it will happen any time soon.
 

trinitrotoluene

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Law2Doc said:
This is the right way to do it, in my opinion. As a model for this, the US Court of Fed Claims currently serves as a gateway for vaccine immunization claims, and administers awards from a fund generated from taxes on vaccines. This was set up out of fears that the major vaccine firms would be sued out of existence, since a few percent of children will have adverse reactions. An experienced judge hears and administers the cases, no jury, no contingency fees for the lawyers (just court awarded fees). At the end of the case, the plaintiff could forego any award and restart the case in state court, but few do, as the winners already have an award in hand they can accept, and the losers have a federal judge's ruling in evidence they would need to overcome.

So this is a great way to handle this. But I doubt it will happen any time soon.
Personally, I also like the idea of having a fund like the 9/11/2001 fund. If you are hurt for any reason (doctor's fault, nurse's fault, hospital's fault, no fault) other than the patient's fault, the patient could take money out of the fund IF they agree not to sue anyone. Injured patients get money, docotrs get lower malpractice rates, and the multi-millionaires pay for it all.

You could also do a more limited version of "loser pays" in extreme cases. Currently, to win a malpractice claim in most states, you only have to show 10 of 12 jurors that it is more likely than not that malpractice occured. (Doctors have the same burden to win as well.) Under my plan if all 12 jury members found "clear and convincing" evidence (a higher burden) in either direction, the losers (trail lawyers or insurance companies, not patients or doctors) could be forced to pay.
 

freaker

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Bfriccia1 said:
Actually most cases with merit never actually face a jury and there are studies which suggest that not enough malpractice cases actually get heard.
Okay. So let's get this straight. The costs to medical practices are rising at astronomical rates, and the majority of cases aren't even getting to court. Why, then, the astromical increases and what can be done to prevent them?

And the reason the doctor's win the majority of these cases is that the cases are found without merit. That's what I was saying earlier, yes?
 

freaker

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1) If 80% of all claims are "bogus", then you could point out 1,000+ examples for the record, maybe?
I don't need to. There are numerous studies that indicate as much. See Bfriccia1's post, as well.

If a doctor inflicts $2 million worth of pain and suffering, shouldn't that doctor also pay $2 million in damages?
In a word: no. That's what insurance is for. To make a doctor pay $2-million dollars for one instance is counterintuitive. Doctors perform a service that is useful to society, and thus it is in the best interest of society that they continue to practice. You and I both know a $2-million dollar lawsuit would destroy them. But let's put it another way, if a doctor relieves $2-million dollars in pain and suffering, should a doctor be entitled to bill a patient for $2-million dollars? I think you and I can safely agree the answer is a resounding no. Cost/Benefit 101.

Insurers don't cover arsonists, wreckless drivers, and people who live on flood plains for a reason, right? Why do any different with doctors?
I'm not sure how this is relevant. The standard of culpability in a medical malpractice case is negligence. Arsonists act with intent. Wreckless drivers act in wrecklessness. These are entirely different standards of culpability. Your example of living on a flood plain is more relevant (no culpability, but the owners assume the risk, much like a doctor assumes the risk that something could go wrong in agreeing to perform an operation), but you need to specify what you mean more precisely. Certainly those specialities more prone to med mal lawsuits pay higher insurance premiums than those in less risky specialties (e.g. neurosurgeons relative to radiologists). If you are referring to doctors who have proven to be negligent more frequently than their specialy's average, fine (and this is the case with premiums). But I don't see how you can assess this before any malpractice has occurred. And again, I point to the fact that it is in society's best interest that doctors who prove no more negligent than their colleagues continue to practice.

I also note that New Zealand has recently adopted a policy that gives doctors a zero-fault system, whereby physicians can report incidents of negligence so that they may be prevented in the future. The name of the game is prevention of future negligence, something that is not best adhered to in hiding it for fear of liability.

As for expert courts and expert panels, I agree that they sound nice in theory, but think about them for just a minute as a future physician. You mean to tell me that you're going to fit time in your already hectic schedule for court proceedings? Do you know how long those take? And it's not like taking a doctor out of his or her practice is exactly a vialbe option for hospitals and practices.

The problems that you might imagine have indeed transpired in the 31 states where expert pre-screening panels have been implemented. As expected, cases began to backlog, and in the meantime, plaintiffs were left uncompensated for injurites they may have sustained and left to wait for their day in court. Eleven states have since done away with panels completely (meaning there are only 20 now), either by the legislature or the judiciary. For one, they were seen to ultimately violate a plaintiff's right to due process. For another, they were found to actually increase the price of litigation, as essentially two trials had to be prepared for. Additonally, panels have been found to lead plaintiffs to drop their cases more frequently, in part due to escalating legal costs and long waits to get a trial heard.

Finally, expert panels have been found to have no effect on doctors' medical malpractice insurance premiums (unlike capping damages).

Forming an expert court (i.e. one where a judge specializing in only one legal issue is appointed or elected) seems somewhat more promising,, but I still have issues with this idea. It's definitely a system that would need to be very carefully examined before bringing it into fruition.

With most successful specialized courts, the issue in question is one that could place interested parties on either side of an issue. For instance, IBM could argue that its patent rights are being infringed upon, or it could argue that it is not infringing upon the patent rights of another corporation. However, with med mal, you always have docs and defendant attorneys on one side and trial lawyers on the other. This naturally leads to a highly politicized process in appointing or electing judges, with both sides fighting in their own self-interest.

As these courts will be small, you can only imagine the in-fighting and posturing that will be going on, and I question how fair these courts will ultimately be.

If you were honestly expecting to have experts essentially serving as a jury, well, I don't know what to say about that other than it's impossible without restructuring the medical community. Court cases have a nasty habit of dragging on for extended periods of time, and I don't see how you're going to pull doctors (or even other health professionals) out of their practices constantly to oversee court proceedings. These would backlog even further than the panels have, and I would imagine draw a lot of ire from the medical community.

7) How is using the fear of manipulating juries to deprive injured victims due process not evidence of a fundimental distrust of the judicial system?
Addressing a concern is hardly a display of distrust. There are numerous studies that show that juries are consistent in awarding economic damages but HIGHLY variable in awaring noneconomic damages. This is a problem. And I'll further note I in no way said anything about stripping away due process. My point was that lawyers bring cases with questionable merit forward knowing that if their case goes before a jury and malpractice is found, the odds are not all that bad that they can sway the jury to award a large sum of $$$. (See use of per diem punitive damages)