Thursday, June 25, 2009


The continuing debate over Health Care Reform is starting to heat up. I've started to hear that old chestnut about how doctors and hospitals are burdened by the high cost of malpractice insurance, brought about by out of control damage awards, and that we as a nation could lower the high cost of health care if we just enact tort reform.

Some of the arguments for reform include limits on punitive damages, limits on non-economic damages, use of court appointed expert witnesses, the adoption of the English rule that the loser pays and the elimination of elections for judges. The arguments against reform include fairness to persons injured, punishing people or corporations that are negligent and the idea that only by exposing and punishing negligent acts will people and institutions change their behavior. Which political side takes which position is pretty well known, so I'm just going to leave that alone. What I would like to address is the elimination of elections for judges, and how that could have a significant effect on jury awards in general and medical malpractice in particular.

Why should electing judges have any effect on the size or frequency of jury awards? Judges are impartial, right? Well...sort of. We've seen of late that judges can, and do, get their hands caught in the cookie jar when their financial interests and the interests of justice collide. And there's no bigger cookie jar than campaign donations. But, while avoiding even the appearance of a conflict of interest may be a good reason to stop electing judges, I think that there's an even larger conflict that elected judges face. Pleasing voters.

Elected judges like to get reelected. While their appeals to donors can be personal and done in the back room, so to speak, the appeal to voters is public and based on a judges record. And there's the rub. It's far easier to defend your record (to the voting public) as a judge in civil lawsuits if you don't have a long list of the poor injured plaintiffs who you've dismissed out of court before their cases could be decided by a jury. So "bad" cases or cases that could result in huge unjustified jury awards regularly get tried. And juries award huge unjustified sums to injured plaintiffs and we all get to stand back and blame the greedy lawyers. So, as a result, all liability insurance rates go up and more and more cases are settled out of court. More importantly in the medical field, more and more doctors start to practice "defensive medicine," ordering tests and procedures that protect the doctor or hospital from lawsuit, rather than the health and well being of the patient.

As I've said, the public likes to blame the lawyers because they file some really ugly lawsuits. They will include every possible defendant, no matter how remote their connection to the harm. under that tried and true legal theory of "Sue everyone in sight." And our elected judges just roll over and allow such cases to proceed. You see, it's not as if judges don't have any recourse. They do. It's called "The Rules of Civil Procedure." Every state, and the federal judiciary, have them. The rules set out how you start a civil lawsuit, serve notice, make motions, etc. Here's the West Virginia version that I used to practice under.

Now here is the really interesting bit. The rules say that, in order for a party to file a legitimate lawsuit, they have to "
state a claim upon which relief can be granted." Say what? In English that means that your lawyer can't just make up a connection between your injury and, say, Dr. Green. There needs to be what's called a causal link. So judges can throw plaintiffs out of court before a case even gets underway. (The particular rule is number 12(b)(6). It also references rule Rule 56, Summary Judgment).

So what's the point? If judges weren't worried about reelection they would have far less inclination to "let a case go to the jury." They might actually throw bad cases out
and sanction plaintiffs' lawyers for wasting the court's time in the first place (see Rule 56(g) ). Let a sitting judge charge a few malpractice lawyers with contempt of court and a fine and the number of questionable lawsuits in that jurisdiction will start to go down. Will some good cases get thrown out or not filed? Probably, but that's why we have appeals.

Elected judges are afraid to do this. I know. I've seen it in action. I represented a businessman in a matter involving a contract to buy some real estate. In the course of negotiations the businessman's father hand delivered the contract documents to the seller. When the negotiations went south the seller sued my client and his father! Now, it doesn't take a law degree to see that Dad's connection to this matter was peripheral at best
. So, as a favor to my client, I filed a 12(b)(6) motion to have the case against his father dismissed. The judge turned us down saying "I think we should let the jury decide." Result...Dad had to get his own lawyer and proceed with the case. He was ultimately dismissed as a defendant and his son won his case, but at what cost? The father had to pay his lawyer and take time off from work simply because the elected judge was facing opposition and, to a judge, letting the jury decide is always safer than making the decision yourself.

In medical malpractice cases, as we've seen, the results can be much more expensive for the parties and for society as a whole. What should we do then? I think that judges at every level should be appointed for either a limited term (say 12 years for trial judges, 20 for appellate judges) or until they reach a mandatory retirement age. Governors can do the appointing at the state level, just like the President for the Federal Bench, and, if need be to get such an idea passed, confirmation by the state senate. We already know how to do this, it just requires some political courage.

Oh wait. Political courage seems to be in short supply every time this subject comes up. Maybe next year. Ya, sure!

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