I wonder if it is possible to make all patients sign a disclaimer that they cant sue the doctor for more than XXXX amount of YYYY procedure or management of disease ZZZZ.
Binding arbitration is close, as are statutory caps on "non-economic" damages. Variations on this theme include "pre-certification/screening" of cases which hardly work at all, but does introduce an additional expense to the plaintiff which may discourge the most blatent of frivolous cases, but I'd dare to bet that someone somewhere for some significant price will certify that the hangnail on Aunt Dorothy caused her MI and thus not treating the hangnail was the proximate cause of dear Aunt Dorothy's demise.
Killing all the lawyers was King Henry's solution to being forced to follow the Magna Carta. No lawyers, and he could do what he wanted with even few checks on his authority. [editorial aside: Sounds like King George II and I voted for the beggar].
On the ethics of lawyers. loveumms is correct. Completely correct. "...almost anyone thinks they can sue for a bad outcome but, any good medmal lawyer knows this is not the case and will not take the case. Most lawyers have a physician they pay to verify the case and it's merits. They don't want to lose either."
Herein lies the problem. In this context "good" implies honest and ethical. Yes, good lawyers will turn down a bad outcome med-mal case, but there will always be another, lower down on the sleaze parade that will indeed take it, file it and then run up the defense tab to the point where the insurance company will offer a payout just to keep the legal bills from eating them alive.
The economics goes very roughly: Plaintiff with bad outcome and no breach of duty files. Initial Costs: couple of hundred bucks or so. Discover and preliminary motions: around a few thousand for the plaintiff. Pre-trial motions for summary judgement (defense only, plaintiff wants to parade dead grandma in front of the jury and the evil doctor who let her die of old age instead of caring properly for her). Summary judgement granted, case dismissed. Plaintiff's lawyer to insurance company, yeah, we lost, but an appeal will cost you $50k to defend and it'll only cost us a couple of hundred to file and prepare and on the outside chance it's reversed. If it is reversed, then we go to trial which will cost the defense around $250k in fees and costs and we might win a verdict, as unlikely as it seems. Do you really want to take the chance in front of the jury that granny's sweet picture and her not so sweet pressure ulcers will make the jury mad enough to overlook the facts?
Insurer: $50k to argue an appeal, risk of being remanded for trial, risk of trial with potential $1M verdict. How 'bout we offer $25k and settle. After some negotiation, a payout is made, case is closed. Plaintiff's attorney pockets enough to keep the lights on in the office, insurer is out $80k or so and considers itself lucky it hasn't had to pay a lot more, even though all concerned know the claim is trivial. Plaintiff's lawyers roll the dice they can get to a jury and defense attorneys work to reduce the risk it will happen.
Result: case settles for cheap with everyone knowing the case was frivolous. the doc is dinged with a med-mal claim with a payout and makes the infamous National Practitioner Databank, and now has a claims history which of course will make him a high risk doctor when they renew his policy next year for an annual increase of 10-20% (say $10k/year) for the next 5-8 years.
Yup, it's a wonderful system we have to work with. Think it doesn't happen this way? How much was the lottery payout that was just awarded? $370M and tickets in NYC were selling at the rate of several million per hour. That's a million bucks an hour in one state alone. (Assuming the tickets are a buck a piece, I don't buy 'em so I don't know for sure).
