Deters Just cases that aren't clear winners
That's where it gets complicated, at least in PI Med Mal cases.
Practically speaking, an attorney sees an injured client in his office, and wants to help. He is often not going to be adequately apprised of appropriate facts (including those exonerating the defendant) until discovery, deposition and occasionally not even until trial. The result is that 40% of such cases are brought without merit.
Once the attorney realizes well into the process his case probably lacks merit, why doesn't he drop it to save time and further personal expense?
Because in the US system 30% of those meritless cases still end in findings for the plaintiff.
The European Tort Model
Here is how to reform the US Tort System. Do what is done in the EU:
--- Offer two parallel options for plaintiffs.
The plaintiff can choose either.
An adversarial approach virtually identical to our current Tort System, but with the requirement that the loser pays the winner's costs. I'd propose the elimination of caps for pain and suffering under this option.
A Worker's Comp type system. Injured patients would bring claims before a review board responsible for determining if compensation is in order and, if so, how much. The Board would then authorize payment out of a "compensation pool" which would be immediately awarded to the plaintiff. For a patient to get paid, the board would not have to find the doctor at fault, or that medical negligence caused whatever pain and suffering the patient is experiencing. Money for patient relief would come from a national compensation fund paid for by malpractice premiums placed on doctors, hospitals, pharmaceutical companies, etc.
The goal of such a system is not to find fault or establish causation. It is to provide compensation to injured patients regardless of cause.
This dual option mechanism is employed throughout Europe. The vast majority of plaintiffs go with Option #2.
Because in the current US system only 46% of settlement money actually gets to plaintiffs, use of a European style system with a 5-10% overhead could nearly DOUBLE AVAILABLE SETTLEMENTS to US plaintiffs. It would concomitantly eliminate cause for wasteful defensive medicine knocking 10-20% off of US healthcare costs.
This post was edited on 3/24 at 10:28 pm