Tuesday, February 04, 2003

Glenn Reynolds, aka Instapundit, is my VERY good friend, because he put up a link to me. I've gotten some very nice emails -- thanks to one and all.

Dave Roberts writes: "Given the profit margins in this insurance, why don't the trial lawyers of America form a consortium with doctors to self-insure the industry as a
whole? Why don't lawyers insist on public disclosure of settlements with bad doctors so other patients can avoid them?"

As to the first, Ithink it would be a great idea to team up with doctors, not only to reform malpractice insurance, but also to joint venture in order to hold Big Insurance's feet to the fire when they don't promptly and fairly pay doctors who treat those such as my clients. The reason one doesn't see such a get-together is the unfortunate -- and ill conceived -- notion of doctors in general that trial lawyers are their enemies. Not true. I tell any doctor that will listen that any self-respecting lawyer is not going to sue them unless (1) they are clearly and notoriously at fault, and (2) the patient's injuries are catastrophic in nature.

Maybe one day, the doctors will realize that we have a lot in common; for instance, both lawyers and doctors are held to a high standard of care, both may be sued for "malpractice," and neither profession is or ever will be perfect. The key -- with both professions -- is to winnow out the bad practitioners. The medical profession is notoriously bad at this task; example: their National Practitioner Database, that reflects the number of complaints, claims, judgments and settlements against doctors, is so highly conidential that I doubt I will ever see it. If the public had this information, then the doctors who are continuously sued [where there's smoke, there's fire?] might go find another way to make a living. I don't know about them, but I feel an almost sacred obligation to my clients, and I don't hold their lives in my hands, like the doctors often do. If you're just not good at doctoring, would you really want to stay in practice?

As to the second item, it is the doctors/Big Insurance that insist on confidentiality in settlements. I hate them. I have, however, allowed my clients to enter into them, because ultimately, the goal of the exercise is to get money damages for the client. If I can "show them the money" on the proviso that they remain mum about the settlement amount, it's in that client's best interest to do it. I agree that it's not in the interest of the overall landscape, however. I think that the defense feeling on it is that, with a confidential settlement, there is no quasi-precedential effect to that settlement, because no one but the parties knows what it is. Thus, by keeping a lid on the amount, they can keep a lid on the value of future settlements. For those of you who belong to ATLA, check out the October 2002 Trial magazine. I'd post a link to it, but it's members only, and I don't want to get in trouble.

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