Cory Franklin: Malpractice Reform Is Unworkable and Unwise

By Cory Franklin
Thursday, September 24, 2009; 3:36 PM

To create a viable health-care bill, one chip on the table is medical malpractice reform. This is misguided.

Medical malpractice is an imperfect process. Plaintiffs' attorneys commonly search for "deep pocket" defendants, seeking access to the courtrooms where they might prevail on jurors' sympathy. Defense attorneys and insurance companies, meanwhile, employ formidable financial and legal resources to delay or deny recompense to those legitimately deserving.

But most proposed federal attempts at malpractice reform would either be unworkable or would infringe on individual states' prerogatives to reform their systems.Former senator Bill Bradley has suggested the government establish medical courts, similar to bankruptcy or admiralty courts that employ special judges. Others have suggested impartial physician panels to adjudicate claims. These proposals are superficially attractive but unfeasible. Bankruptcy and admiralty law involve legal issues judges understand. Malpractice issues are primarily medical, requiring jurists with extensive -- and expensive -- medical training. Nor would panels of impartial physicians work. Physicians, though well versed in matters medical, are no more impartial than any other professionals. No profession should decide its own disputes with the public.

Tort reform does address one undeniable consequence of malpractice: the high cost of malpractice insurance. In plaintiff-friendly venues, specialists paying exorbitant insurance rates may move elsewhere, leaving an area without specialists. Federal reform definitely could have an impact, either by limiting pain and suffering (non-economic) damages, or by limiting attorneys' fees, thereby discouraging many lawsuits. But is this the federal government's role? Access to specialists and exorbitant malpractice rates are primarily local problems, not national concerns. States should decide when and how to curb non-economic damages or restrict attorneys' fees to relevel the playing field in a given locale. Federal micromanagement would remove this power from the states.

Cory Franklin is a consultant on medical malpractice and the former director of intensive care at Cook County Hospital.

© 2009 The Washington Post Company