Iowa was in the news recently with proposals that it adopt a
“certificate of merit” system and that it cap non-economic damages in medical malpractice cases. Under a “certificate of merit” system, a medical expert
would have to review a potential medical malpractice case to determine whether
the plaintiff’s injuries were caused by the negligent care of a healthcare
provider. The verdict cap would limit non-economic damages,
which are often crucial to ensuring plaintiffs get a just recovery.
The stated purpose of these proposed reforms is to help Iowa
attract additional physicians. Under this logic, “frivolous lawsuits are harming our ability to recruit and retain doctors.”
This is simply incorrect. To begin with, much of Iowa’s
physician shortage is really a byproduct of the fact that Iowa is a rural state
with few major population centers. Efforts to make it more difficult to bring
meritorious medical malpractice cases to trial will not change the reality that
it’s hard to encourage physicians to practice in rural areas far away from
major population centers.
These proposals also fail to recognize that Iowa is already
a challenging environment for plaintiffs who bring medical malpractice litigation.
In Iowa, the statutory 180 day expert witness disclosure rule, along with the
reality of how costly it is for a plaintiff to successfully litigate a medical
malpractice case, means most plaintiff’s attorneys usually have a case reviewed
by an expert witness prior to filing. This allows plaintiff’s attorneys to
avoid filing cases that are unlikely to result in a satisfactory recovery for
the plaintiff. As such, common practice already results in an informal
“certificate of merit” approach anyway.
In fact, this environment not only discourages the filing of
“frivolous” cases, but also many meritorious claims where the costs of
litigation discourage filing claims. The end result of these circumstances can
be seen in the significant decline
in the number of medical malpractice cases filed in Iowa in the past decade,
where 335 cases were filed in 2002 and only 187 in 2011.
These proposals also don’t take into account that such
reforms simply don’t achieve their states goals. As Brad Lint, executive
director of the Iowa Association for Justice noted, the “certificate of merit
proposal would drive up litigation costs for plaintiffs and defendants alike,
and make it much more difficult for seriously injured patients to pursue their
claims in court.” Lint went on to note that in states that have enacted verdict
caps, “Health insurance premiums didn’t go down, doctors didn’t save money on
their liability insurance, but insurance company profits shot through the
roof.”
Given these factors, at Hayes Lorenzen Lawyers we feel that these
proposals should be a non-starter with the state legislature. We also concur
with the Quad City Times that such proposals “would be legislative overreach.Iowa has not experienced runaway medical malpractice judgments. We’re much more comfortable with laws that leave judicial matters to jurors and judges who hear facts unique to each case, rather than having legislators make up an arbitrary cap.”
In the coming weeks and months this blog will provide
additional posts that hopefully will add some clarity and context to the debate
about the prior-mentioned reforms.
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ReplyDeleteSo what I understand from what you've written, they will look at whether or not the treatments that were provided were negligent. I'm confused about what non-economic damages means. Does that mean that if the person can't pay for a procedure, they can't sue a doctor for not performing the procedure? I can't really grasp what it means. http://www.goldbergkatzman.com
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