The Wall Street Journal on “Do it Yourself Tort Reform”

In today’s Journal, an article by the people behind Medical Justice:

In 2002, we launched Medical Justice, a membership-based organization designed to complement tort reform and to head off frivolous lawsuits. ….

Our service has two principal components. First, we look at the quality of so-called expert-witness testimony. Behind every frivolous lawsuit there is an “expert” — usually a physician skilled in testifying before juries and often compensated to the tune of $10,000 dollars a day. Put bluntly, many of these “experts” are frauds, as this newspaper has repeatedly shown in cases regarding asbestosis and silicosis claims….

Medical Justice’s second tool is a patient-physician contract. That contract states that in a legitimate dispute, both sides will utilize only those experts who belong to such societies and who strictly follow their code of ethics. This limits the list to reputable and accountable physician experts, thus precluding the use of hired guns or medical “witnesses having other rational explanations” — better known by their acronym.

Does it work? Yes. After five years of collecting data, we know that Medical Justice plan members are sued at a rate of under just 2% a year. The average doctor is sued at a rate of 8%-12% per year. And the company is top heavy with physicians in “high-risk” specialties.

Private law saves the day? Perhaps — but how long before the plaintiffs’ bar fights back with legislation?


  • As regards the “contract” on expert testimony, legislation may be supererogatory. It’s not self-evident to me that parties may contract to vary the rules of evidence.

  • How long? Just as soon as it gets big enough to get some real attention and threaten the market as a whole. (“the market” being a euphemism for the majority of people that the lawyers in question xtract money from.)

  • Witnesses Having Other Rational Explanations – thanks for the good laugh.

  • I was removed from one case when I told my carrier that if they settled I would sue them, for defamation of my professional reputation. I believe the other parties kicked in 5 or 10K each.

  • Medical Justice also provides members with another physician-patient contract. This contract prevents patients from posting reviews of physicians on web sites such as Physicians — members of a state-licensed cartel which regularly engages in anti-consumer practices — should be no more immune from public critique than any other business people. Overlawyered doesn’t like it when restaurant critics are silenced, and it should also be offended when physicians try to prevent public comment on their work.

    Rarely mentioned in discussions about tort reform is the privileged legal status of physicians, or that malpractice laws are a product of that status. If it were possible to sue a physician for simple breach of contract — if physicians were subject to the same legal actions as most other business people — many medical malpractice suits would never be brought. Tort reform ought to be accompanied by elimination of medical licensure, whose harm economists like Milton Friedman and Morris Kleiner have amply demonstrated over decades.

  • […] I’m reminded of Ron Coleman’s post where he quotes an article describing hired experts as “witnesses having other rational […]