You know Don I enjoy this dialogue, but I think you missed the point this time. There is no evidence either empirical or anecdotal that demonstrates the tort system prevents malpractice. The vast majority of claims in the legal system are without deviation. The GAO did a national study in the early part of this decade (2002) and came to the same conclusion. The tort system thwarts the improvement of medically prevented errors. Without question in my 30 years of handling over 50,000 claims we found the vast majority were lacking merit (no deviation). That is not anecdotal we closed nearly 80% of our claims without payment. The amount of dismissals and summary judgments were consistent from year to year and comprised a large portion of our closed claims.

What we were finding attorneys who once took great care to file a claim based on negligence now focused on injury. The fact that 30% of all loss paid (reported by the Star Ledger) is on one specialty (OBGYN) reflects the desire to advance large value claims (brain damage, dystocia & cancer) these claims all emanated from one particular specialty (there are over 40 specialties).

I almost never had difficulty finding credible experts to defend these types of claims but rarely took them to trial, OBGYN's paying over $100,000 in premium affect all of us. Our children will have their children delivered in clinics with strangers. This will be our generation's gift to them.

Attorneys must stop justifying what they do and how they do it in the med mal arena; the numbers are clear 75% to 80% of the trials are in favor of the doctor, 75-80% of all cases closed are with out payment. And the cases with payment a large number of those are paid out of fear of a verdict in excess of the policy. If 500 to 1000 closed with no payment claims flow through the system with $60,000 to $100,000 in legal and expert costs we are wasting tens of millions of dollars and still no affect on medical errors.

I do not disagree we need to address the issue of preventable errors just don't use the tort system not only does it not accomplish the job it has a counter effect. The policy of insurance prevents communication between the doctor and patient and no medical professional will speak out when they witness preventable errors. Sorry Works can't work in the tort system, it can work with binding arbitration. This is not rhetorical hocus pocus tell me how a 100 million dollar verdict prevents the next precipitous delivery and the ensuing dystocia and explain if there is so much malpractice why do the vast majority of claims close with no payment?

It is time to implement a better way to make injured parties whole. Time to give up the golden goose and if you like I will release my study by law firm. I once studied all the plaintiff's firms they did a woeful job for their clients but did a great job for the firm. It is very interesting I looked at win ratio or monies paid and overall payment to the firm. I found the average payment in the $200,000 to $300,000 range but the firms were taking in several million. The percentage clients obtaining a settlement was consistent with the numbers stated above 20% to 25%. Firms look for the "big hit"....the recent sustaining of the Essex verdict 63 million is a prime example.

And finally don't point out the case of operating on the wrong lung as a reason for the tort system. The tort system does not prevent doctors who should not practice from practicing. It is the very tort system which allowed that doctor to practice, the hospital feared a D & O suit from any attempt to limit or cease his practice. The "buzz word" today is enterprise risk management which is a top to bottom and bottom to top system of ensuring systems are in place ensuring the safety of patients, it creates a culture of safety. The tort system is a roadblock to that "culture."