John Edwards appears to have completely capitulated to the tort “reformers” that seek to close the courthouse doors to those injured by medical malpractice. In a 26-page Health Care policy statement issued today, buried on page 13, is this bit (hat tip to TortsProf):
Stop Frivolous Lawsuits: To discourage frivolous suits, Edwards will require lawyers to have an expert testify that actual malpractice has occurred before bringing a suit. There will be mandatory sanctions for lawyers who file frivolous cases, and any lawyer who files three frivolous cases will be forbidden from bringing another suit for the next 10 years. (emphasis mine)
Now Edwards is a former medical malpractice trial lawyer so he should know better. A few points need addressing:
- It is often impossible to prove prior to discovery that malpractice has taken place. It is one thing to require a physician’s review prior to suit, and have a doctor state that based on the available records there is a reasonable basis to proceed. That’s good practice when vetting the claim. It is another thing entirely to require that malpractice be proven before discovery, or even suit, is undertaken. This would result in the absurd situation of immunizing those doctors who have lousy records.
- Testify before whom? If there is no suit, there is no one to testify in front of. Does the potential defendant have to testify too, to help reconstruct events from poorly written notes? Is there a trial before the suit starts?
- If there must be testimony pre-suit, it requires significant additional funding, thereby granting even more immunity to the medical profession than they have now. Currently, the economics of malpractice litigation immunize the medical profession for most mistakes. Basically, it means a mini-suit before a real suit.
- If doctor-experts are forced to testify, and therefore disclose their identities before necessary, it will make it even more difficult for injured parties to retain experts, due to peer pressure physicians face when they become known as someone willing to testify. They also will be forced to testify based on incomplete information.
- The Federal Rules of Civil Procedure already have sanctions in place for frivolous conduct. It’s called Rule 11.
I have no problem with sanctions for those that bring frivolous suits. And for those that bring frivolous defenses (like blaming the patient for an injury that happened while she was under anesthesia.) Frivolous claims of any kind hurt everyone concerned and should be sanctioned.
But the concept that a case must be proven before it is even started will work only to close the courthouse doors even further.
Either Edwards has completely capitulated to the money of the health care industry at the expense of the downtrodden he claims to represent, or he needs someone to proof-read the policy statements that go out under his name.