Litigation-produced pain, disease and suffering: An experience with congenital malformation lawsuits

Authors


  • Supported by NIH HD 630, HD 07075, ESO 1121; ERDA COO-3268-25.

Abstract

The exponential rise in malpractice litigation is due to attitudes and happenings in the medical, legal and lay sectors of our society. Evaluation of congenital malformation lawsuits provides a unique opportunity to evaluate the process of litigation. Because the cases are rarely meritorious, the litigation process is detrimental to the plaintiff, society and frequently unfair to the defendant. There is no area of our legal system with such a high percentage of innocent defendants. When the family of a malformed infant becomes orchestrated by an attorney into a position of devoting their energy to winning a lawsuit, many high priority family responsibilities may be ignored and important ethical standards are distorted. To win at all costs may be appropriate for a football team but it can be detrimental to a family. The family enters the litigation arena unaware of the lengthiness of the litigation process and ignorant of the fact that only a small portion of the malpractice premium dollar ever reaches the patient. The plaintiffs are not the only participants who lose their objectivity and lower their ethical standards. The quality and veracity of the testimony of expert witnesses has deteriorated to the point that drastic corrective measures have to be instituted. It is believed that recommendations for solving the malpractice crisis, which are based on the experience with congenital malformation lawsuits, should have applicability to the overall malpractice problem and must involve changes in the medical, legal and lay sectors of our society. These recommendations are discussed in detail. It must be recognized that it is difficult to alter the laws and procedures that are not of benefit to the legal profession because so many legislatures are dominated by elected officials who happen to be attorneys. But it is emphasized that of all the recommendations put forth, the one having the greatest beneficial effect on the present malpractice crisis would be the elimination of the contingency fee system and replacing it with no-fault compensation or legal-fee insurance. The contingency fee system provokes and promotes malpractice litigation. The process of litigation rarely solves the patient's problems and frequently develops into a disease all its own.

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