John Edwards has come out with his health care plan: “Reforming Health Care To Make It Affordable, Accountable and Universal.” I am disappointed to see that buried on page 14 is the following:
“• 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.”
Why am I disappointed? Truthfully, it’s not the content as much as the language. Really. These proposals simply mimic the rules already governing the medical malpractice cases which I file. I practice in Pennsylvania and New Jersey and in both of those states we must have a written “certificate of merit” (Pennsylvania) or “affidavit of merit” (New Jersey) or else a medical malpractice case can’t proceed in court. This means that you have to file a document certifying that an appropriate medical expert has reviewed the case and believes there is a basis to proceed. Plus, if you try to proceed and you lack the adequate medical expert support for your case, you can be sanctioned. Truth be told, that’s the way responsible medical malpractice lawyers have done business since long before our state legislature imposed these procedural limitations.
So why does the Edwards proposal bother me? Because I expect more from a fellow trial lawyer. His campaign has bought into the jargon of the tort-reformers who are doing the bidding of corporate America and the big insurance lobby. The whole suggestion that there is a huge problem with “frivolus medical malpractice litigation” is a myth. What’s the proof counsellor? The proof is really simple and it is backed by unimpeachable research: “portraits of a malpractice system that is stricken with frivolous lawsuits are overblown.” This is taken from a Harvard study published in the New England Journal of Medicine on May 11, 2006. It is really that simple.
But let me make it really clear. These cases are hard fought, expensive, time consuming, and go on for years. As trial lawyers, we typically work on a contingent fee. That means that we aren’t paid unless and until there is a recovery for our client. Try asking your mechanic to service your car for a few years before he’s paid and see if he’s willing to do that. So now ask yourself who in their right mind would pursue a “frivolous” case? Right. Like I said, it really is that simple.
So I say, “come on Senator Edwards, don’t buy into their lingo.” I only hope that the other candidates don’t follow the path of using outmoded language about a crisis that doesn’t exist.