Eric Novack, MD is host of “The Eric Novack Show,” a weekly radio program dedicated to examining healthcare policy and politics. Sundays on KKNT960 AM Phoenix.
An interesting article appeared in the February 11, 2006, edition of the Wall Street Journal. “Trial Bar Cleanup” examined how, with help from judges, the justice system can provide better and more justice:
It's amazing what a little courage from the bench can do to clean up the justice system. Now that word is out that most silicosis lawsuits are shams, ever more judges are helping to expose the corruption.
The latest is Florida state Judge David Krathen, who in a recent hearing rebuked plaintiffs lawyers for inventing silicosis suits, and declared "mind-boggling" the effect that phony suits were having on the "economic well-being of this country." He vowed to ride herd on the claims in his court, separating the good cases from the fake.
This isn't the way trial lawyers are used to being treated, and credit for this tougher approach goes in part to Texas federal Judge Janis Graham Jack. Judge Krathen made specific reference to the litigation Judge Jack presided over last year, in which she exposed how lawyers, doctors and X-ray screening companies had "manufactured" some 10,000 bogus silicosis suits "for money."
Of the 10,000 suits that Judge Jack sent back to state courts, more than half have already been dismissed -- often at the request of the lawyers who first filed them. Even the wizards of the plaintiff bar are wary of re-entering court sporting discredited doctors and screening companies, many of which are now the focus of federal and Congressional investigations. Separate silicosis suits have also been dismissed in Ohio.
Defense attorneys in Florida presented data that of 111 suits filed on the day before a new asbestosis and silicosis law took effect, 72% of the plaintiffs filed both asbestosis and silicosis claims—in spite of the fact that actually having both conditions simultaneously is extremely rare.
The cost of defense for even one baseless suit- devoid of medical science- is not trivial. Vulcan Materials “had been named in 17,000 claims, its products had only been positively identified by plaintiffs in 23. The lawyer estimated it can cost Vulcan up to $17,000 to get dismissed from a case.”
Now, please understand the impact of defending baseless suits on small businesses- a category into which most doctors fit.
I have written about the important role that modifying the medical liability system can have in improving the quality of care, weeding out truly bad doctors and compensating people who have actually been injured by negligence. Critics claim that I am trying to cover up the actions of bad doctors and denying the legions of people injured by scores of careless doctors. They say that it is not the role of the courts to help set standards. They say that since doctors rarely lose a case, what is the big deal?
There is a psychology experiment where two rats are put into different cages. In the first cage, half of the cage gives the rat an electric shock. After a while, the rat learns to avoid the noxious stimulus and goes on living a happy rat life.
In the second cage, the side of the cage that gives a shock is changed randomly. The rat initially works hard to avoid the shock—but, after a while, understands that there is no way to completely avoid being shocked.
This is learned helplessness.
The current system—for doctors, for hospitals, for companies— is creating a culture of learned helplessness in our healthcare system.
The health court system as I suggest, and as put forth by such organizations as Common Good, would help create a more ‘fair-minded approach’ to medical liability and combat, in the words of the WSJ, “the trial bar's transparent corruption.”