24 February 2006

The Case For Medical Liability Judgments

I've got civil procedure reform on the brain today for some reason. So, here's another idea.

In your typical personal injury case, a very large part of the litigation cost involves an exhaustive delivery of medical records by the injured person, to the person whom they wish to hold liable, often accompied by review of those records on both sides by medical professionals. This almost always is primarily directed at the extent of a defendant's liability for the injuries allegedly caused. Frequently, expert testimony is necessary, at great expense, about the anticipated future costs associated with the injury.

The parties must undertake this expensive and time consuming enteprise, prior to trial, before they even know if there will be a finding of legal liability.

The issues involved in the proper amount of damages for medical expensives are often document heavy, expert testimony driven, and involve uncertain assessments about the future.

Why not have a trial, present much more limited medical evidence devoid of any testimony about the associated cost of the care, and have a jury rule on:

(1) The liability of the parties;
(2) damages other than medical expenses; and
(3) whether or not any physical injuries were incurred as a result of the accident.

If there was liability and there were physical injuries, in addition to damages, the judgment would include a finding of liability for all medical expenses caused by the accident, already arisen or arising in the future (or some percentge of them), that would benefit both the injured party (in the case of out of pocket expenses) and anyone else subrogated to an award (in the case of insured parties). The parties could, at that point, then enter into settlement discussions on that narrow issue, and if they could not agree could have one of more hearings in court on causation and the cost of medical care already incurred.

With less discovery necessary and fewer issues to prepare to go to trial upon involved, cases could go to trial sooner (while witnesses recollections were more fresh), the cost of litigation up to the point of trial would be far less, reducing the amount of gamble of litigation investments associated with the current system, and settlement after that point could take place from a basis of a fact based, jury determined foundation, rather than in the shadow of what a jury might do in a case.

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