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Increasingly alarmed by the real and imagined inequities of the medical malpractice system, physicians across the country have been looking everywhere for relief. They have lobbied for law reform at both state and federal levels, they have rallied and protested, and some have even gone “on strike.” While their efforts have achieved some success — notably in states that have enacted severe damage caps, such as California and Indiana — malpractice insurance premiums have continued to rise, prompting repeated announcements that the medical profession is facing an economic crisis. At least in the short term, no comprehensive remedy is in sight. President George Bush’s proposal for federal legislation to limit noneconomic damages has foundered in the Senate, stalled by a coalition of Democrats and Republicans who are skeptical of the bill’s virtues and disinclined to impose federal law in an area that has traditionally been handled by the states. And even if a national damage cap were enacted, it would do nothing to eliminate the so-called frivolous cases that doctors complain about most bitterly. With so much angst and anger among so many affluent professionals, it was only a matter of time before an astute entrepreneur figured out a way to cash in on the problem. Which brings us to Dr. Jeffrey Segal, a North Carolina neurosurgeon and the founder of a new insurance plan called “Medical Justice,” which he promotes as a deterrent to malpractice litigation. It is an intriguing idea that just might work. Then again, it might only be a clever marketing scam. Segal’s innovation is based on the insight that standard malpractice policies actually encourage litigation. As physicians acquire greater coverage, their pockets grow deeper, and plaintiffs become more likely to bring lawsuits. Worse, plaintiffs lawyers also become more tenacious, spurred by their belief that insurers can eventually be persuaded (or coerced) into settling some questionable cases. The plaintiffs lawyers are correct, of course. Insurance companies tend to settle cases on the basis of actuarial models, balancing defense costs against the range of likely outcomes, without much concern for an individual doctor’s self-esteem or reputation. Physicians, therefore, find themselves trapped. They are addicted to the very coverage that makes them attractive targets, unable to practice comfortably without malpractice insurance, and compelled to pay whatever the market will bear. The Medical Justice plan promises to break the cycle. Rather than pay for defense counsel and adverse judgments, Medical Justice covers the costs of counterclaims, offering to pay the “legal expenses to countersue proponents of frivolous suits” and to “obtain redress against hired-gun expert witnesses in their professional societies.” By arming doctors to “fight back,” rather than merely defend themselves, Medical Justice claims that it can deter lawsuits in the first place, “constrain” the testimony of adverse expert witnesses, and, if necessary, pursue a countersuit on behalf of the insured physician. But will it work? Will plaintiffs lawyers — infamous throughout the known universe (or at least among resentful physicians) for their aggressiveness — really be discouraged by the threat of counterclaims? Medical Justice is banking on it. The plan includes sending a “patented” letter on behalf of the policyholder, notifying “plaintiffs and their representatives” that the defendant-doctor has the wherewithal to retaliate in kind. “Medical Justice,” the letter says, “pays the legal expenses up to $100,000 to bring counterclaims against any proponent of a nonmeritorious medical malpractice suit.” And if the lawyers can’t be intimidated, maybe their expert witnesses can be. Medical Justice also promises to bring professional disciplinary actions against “unscrupulous” experts who have “committed perjury, delivered false testimony, or engaged in fraud or deception.” To facilitate all of this, Medical Justice provides its policyholders with a special intake form (patent pending), requiring patients to state that they will not sue the doctor “for frivolous reasons” and, even in a legitimate suit, will only utilize board-certified experts. “This sets up [a] potential breach of contract claim,” according to Medical Justice’s promotional materials. This must sound pretty good to desperate doctors, especially since it only costs between $600 and $1,800 per year. According to Medical Justice, the “suit rate” for plan members in Florida is less than 2 percent per year, which is far better than an asserted “published baseline of 10-15 percent.” That seems like a whole lot of protection for not much money. Unless it’s no protection at all. The most interesting thing about the Medical Justice plan is that it doesn’t really make a commitment to pay for anything. According to the company’s Web site (medicaljustice.com), the countersuit coverage only applies once a malpractice case has been terminated “in favor of the planmember [sic]” by trial verdict, summary judgment, or dismissal for failure to state a claim. If the plaintiff wins, or the case is settled, or even if the case is dropped, the “ countersuit remedy cannot be used.” But even if the physician wins at trial, the plan only guarantees a “review by an independent party to determine if the malpractice case was frivolous.” Following the review, “the decision as to whether or not to proceed with a counter lawsuit or other legal action . . . shall be at the sole and exclusive discretion” of Medical Justice. There is no provision for an appeal, or even a definition of “frivolous case.” In other words, the Medical Justice plan has a lot in common with the classic example of an illusory contract: “I promise to paint your house tomorrow if I feel like it.” Or perhaps it is more like snapping your fingers to keep the elephants away. No elephants around here? See, it works. Unsurprisingly, Medical Justice has yet to finance (as of this writing) a single countersuit. Since it sold its first policy in 2002, there has been little time for a case to be terminated in favor of a plan member, much less to be found sufficiently frivolous to trigger coverage. So it is unlikely that many plaintiffs lawyers have been scared off by the so-far unrealized prospect of a counterclaim. Recognizing this problem, the general manager of Medical Justice, Dr. Graeme Hampton, explained in an interview that the company has initiated professional disciplinary proceedings against two expert witnesses. Both of these actions, he pointed out, were actually outside policy coverage, since the underlying cases had all been settled or dropped. Nonetheless, the complaints were pursued because the physician-experts were deemed particularly irresponsible. And for publicity: to show that the policies work. And there’s the rub. To have any chance of success, Medical Justice policies have to rely on their in terrorem effect, striking fear in the hearts of potential adversaries. Preferably in advance. Lawyers, however, are famously immune to such warnings, in large part because relatively few attorneys intentionally bring frivolous cases (and also, of course, because they have malpractice carriers of their own). Expert witnesses, though, are considerably more vulnerable. Physicians in particular are acutely sensitive to matters of reputation and status. It might well be that professional societies can exert some control over freewheeling witnesses, inspired by complaints from Medical Justice. Of course, the targeted doctors are unlikely to take it lying down. They will retain counsel to defend the charges, and many of them will challenge disciplinary measures in court. All of this will be financed, no doubt, by still more malpractice insurance. Ultimately, there is an inescapable irony to the Medical Justice plan. Where once there might have been a single malpractice case, resolved for better or worse, we are now looking at the prospect of multiple threats, countersuits, disciplinary actions, and injunctions — not to mention appeals — creating welcomed work for hungry litigators. To paraphrase Justice Louis Brandeis, it appears that the remedy for bad litigation is, well, more litigation. iSteven Lubet is a professor of law at Northwestern University. His most recent book isNothing but the Truth: Why Trial Lawyers Don’t, Can’t and Shouldn’t Have to Tell the Whole Truth.”

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