I feel compelled to respond to John Tempesco's Monday letter, "Patient-friendly tort reform made easy." I'm an attorney whose practice is almost all medical malpractice, on behalf of injured patients.
Mr. Tempesco asserts that the "current system allows patients to bring unsubstantiated cases without the potential for out-of-pocket costs." This statement is false, and Mr. Tempesco should know that. The truth is that in 1988 (more than 20 years ago), our Legislature enacted the Frivolous Proceedings Sanctions Act. This law provides for awards of monetary sanctions, including costs and attorney fees, against individuals who bring frivolous cases.
Further, Mr. Tempesco ignores the fact that South Carolina, in 2005, instituted tort reform in medical malpractice cases. One significant aspect of that law is the certificate of merit requirement. Now, one cannot file a malpractice case without first obtaining an affidavit from an active practitioner who has reviewed the case and found it meritorious. This is yet another mechanism designed to deter unsubstantiated lawsuits. And it works.
The certificate of merit requirement has not been a problem for those of us who devote a significant portion of our practice to this type of law; we have always obtained expert opinions on the merit of our cases before filing them. While I'm sure that there were attorneys who filed cases without fully investigating them, I'm equally sure they quickly learned that the physicians were represented by good lawyers who aggressively sought dismissals when no experts appeared on behalf of the patient. Those cases have been eliminated, and good riddance.
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Our most recent tort reform law in South Carolina is only four years old. Why is it that folks such as Mr. Tempesco don't want to give the laws on the books a chance to work before proposing further sweeping changes?
The truth is that "study after study shows that costs associated with malpractice lawsuits make up 1 percent to 2 percent of the nation's $2.5 trillion annual health-care bill," according to a Business Week article appearing on the WIS Web site. The article quotes a 2004 Congressional Budget Office report finding that malpractice insurance premiums and payouts to patients represents less than 2 percent of health care spending. Moreover, the National Center for State Courts reports that tort cases represent only 6 percent of the cases in our civil justice system. And of those, only about 3 percent are medical malpractice cases.
Yet, preventable medical errors are a serious problem. A 2000 report from the Institute of Medicine estimated that between 44,000 and 98,000 Americans die from medical errors each year. According to that report, more people die from medical errors each year than from breast cancer, AIDS or motor vehicle accidents. Wouldn't we all be better served by focusing our debate on ways to reduce avoidable medical errors?
GERALD D. JOWERS JR.