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Widener Univ. School of Law

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Saturday, November 10, 2007

Tort Reform in the ER

In Arizona, Sen. Carolyn Allen, R-Scottsdale, the head of the Senate Health Committee, has introduced a bill to raise the burden of proof from a preponderance to "clear and convincing" evidence in emergency medicine malpractice cases.  The goal is to expand the supply of ER physicians in Arizona.  In 2006, a similar bill passed the legislature, but was vetoed by Democratic Gov. Janet Napolitano.  At the time of the veto, Gov. Napolitano stated she saw no evidence that raising the burden of proof would increase the number of physicians willing to work in Arizona emergency rooms.  AZ Central.com has the full story

The first problem with the bill, as Gov. Napolitano noted in 2006, is the lack of evidence that raising the burden of proof will increase the supply of ER physicians.  However, the Governor is said to be weighing a compromise on the issue.  If so, she would do well to ameliorate the one-sided nature of the reform.  One of the problems with the vast majority of tort reforms is that they reflect the self-interest of one group or another.  A better solution, a possible compromise, would be Jeffrey O'Connell's proposed "early offers."  Under early offers, physicians would receive the benefit of an increased burden of proof, but only after offering to pay the economic losses of the claimant. 

Under early offers, an ER physician would have a given number of days in which to offer to pay a claimant for their economic losses (but not pain and suffering).  The physician must also pay the claimant's reasonable attorney's fees (10% of the recovery, which reflects the reduced amount of work necessary in the shortened process).  If no offer is made, traditional common law principles apply.  If an offer is made and accepted, a settlement has been reached quickly and the claimant's basic economic losses have been restored.  If an offer is made and rejected, the burden of proof increases (to either "clear and convincing" or even "beyond a reasonable doubt") and the physician's standard of care decreases to gross negligence.  This obviously provides the claimant with strong incentives to accept an early offer.  The financial savings are enormous, as the article at the last link demonstrates.  Furthermore, the physicians get a higher burden of proof, but only after they have offered to pay the claimant's economic losses.  Both parties receive a benefit.  Under early offers, unlike Sen. Allen's bill, the entire burden of tort reform does not fall on those injured in the emergency room.

CJR

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Comments

Maybe I am missing something, but I don't understand how you can say that the "early offer" proposal is NOT a one sided attempt at tort reform that protects the interests of defendants. It is true that the proposal creates an incentive for the plaintiff to settle, but it does so unfairly. What inncentive is there for the defendant to make a reasonable offer? This type of proposal has been advanced by conservative think-tanks like the Manhattan Institute and Common Good and have been rejected by the ABA and the state of California. The real goal of proposals like these is to make it more difficult for plaintiffs to recover.

Posted by: AB | Nov 13, 2007 8:15:33 AM

The bill from the Arizona legislature will simply raise the burden of proof without any benefit to claimants. From the claimants' perspective, that simply makes it harder to recover both economic and noneconomic damages. It will lead to more claimants walking away with nothing. Under early offers, the burden of proof is only raised AFTER the physician has offered to pay a claimant's economic losses. The economic losses, of course, are those that are most pressing on a claimant. Having those losses paid is a benefit. I used to represent plaintiffs in med mal cases, and I've seen the difference it can make.

Posted by: Chris Robinette | Nov 13, 2007 10:21:59 AM

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