Archive for the ‘Loser pays’ Category

Professor Epstein’s agenda: cut off patients’ access to the courts

Usually the false platitudes about the civil justice system are found on the talk radio and no-news cable sources. But here is a stunning one-sided view of the civil justice system from a law professor.  According to law professor Richard Epstein, the civil justice system fails in its ability to handle malpractice claims.

Professor Epstein apparently dislikes the jury system.  That’s a fairly radical and unAmerican place to start, as both the U.S. Constitution and the constitutions of the various states enshrine the right to trial by jury as one of the fundamental American rights. I imagine that even the Professor recalls his history that our founders viewed that right as one of the best defenses against the tyranny of the crown.

To be sure, the crown today is not worn by a monarch. Instead, today money is king. The right to trial by jury levels the playing field between the wealthy and middle class. Prof.  Epstein is pushing uphill against a fundamental right. Tough place to start, professor.

Beyond philosophy, there are particular problems with Prof. Epstein’s analysis. For example, he embraces the English loser pays rule as an equitable approach.  But he neglects to acknowledge that the English have come to the conclusion that the loser-pays rule is unfair and should be discarded. Loser pays discriminates against middle- and low-income patients and raises the risk of higher legal costs.

The professor is apparently concerned with meritless medical lawsuits. He misses the mark on that as well. While some cases go forward that should not, Professor Epstein fails to acknowledge that more frequently, juries fail to award damages in cases in which there was an injury caused by a doctor’s error.

The professor proposes caps on damages. What he fails to acknowledge is that such caps discriminate against older workers. As well, many states have declared caps unconstitutional because the states decided long ago to entrust such matters to juries, not to lobbyists making one-size-fits-all rules about damages in all cases.

Professor Epstein confuses the macro with the micro. He is happy to selectively argue numbers, but he ignores the toll of preventable deaths in the medical system. Here is a number that he overlooks. In a two year period, a single type of error–failure to recognize and treat complications in a hospital setting–resulted in a reported 188,000 deaths. One can treat that as a dollars and cents problem, but it is far more accurate to look at the 188,000 family tragedies before declaring that we have a cost problem that can only be fixed on the backs of patients.

I have little patience for law professors who live in ivory towers. Let Professor Epstein face a family who has lost their mother to preventable medical injury. Let him hear from parents who buried their kids who died due to callous mistakes. Let him understand that these statistics have faces and stories.

Those of us who dare to try cases against physicians and hospitals take on some big challegnes. Jurors don’t want to believe that a doctor made a mistake. They don’t want to have to question the care that they get from their healers. This is good and right. But even so, no one–not even a law professor with all the answers–should confuse the cold comfort of cost-benefit analyses, numbers and statistics with the tragedy of profound injury.

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