The "letting the voters" decide paradigm sounds very appealing. Up with people and all of that. But, really, do you want the constitution changing as frequently as voters change their minds?

Everyone realizes that doctors are human beings and sometimes the very best doctors make mistakes, as do the best lawyers, accountants, plumbers and waitresses. But it is incredible how few malpractice lawsuits are conceded on negligence. There is almost invariably some defense, no matter how ridiculous.

One of our Maryland malpractice lawyers faced one of these classic throw all logic to the win defenses in a deposition yesterday: the “it is a known risk excuses everything defense.”

During our client’s laparoscopic cholecystectomy (gallbladder surgery), the Defendant doctors cut the client’s hepatic duct. This was a known risk which, according to the expert, means the doctor did not commit malpractice. No matter what.

The hope of the defendant’s malpractice lawyer is to confuse the jury. At first glance, it makes sense. Why would you hold a doctor accountable for a known risk? But the question in any malpractice lawsuit is not whether the injury suffered was a known risk but whether a prudent doctor would have avoided the injury with reasonable care.

Related Information

• President Obama’s Prior Speech on Caps
• Malpractice Caps in Maryland
• Maryland Medical Malpractice

Governor McDonnell made four points that got my attention: (1) Republicans will fight health care reform, (2) there should be limits on jury awards in medical malpractice lawsuits, (3) we are spending too much, and (4) insurance companies should be able sell insurance coverage across state lines.

He was 2 for 4 with me. I do think our deficit/debt is completely out of control. I also think it might help control costs if we could expand health insurance coverage beyond state lines. The lack of quality competition in Maryland with Care First must increase costs and I have to think there are economies of scale to bigger. I'd like to hear more informed debate about some blind alleys I'm not considering but this issue should be fully aired.

Actually, what I wrote above is misleading. McDonnell's actual speech did not focus on malpractice damage caps, although he does support them. His focus was on frivolous lawsuits against doctors and hospitals. Turns out, I'm against those too. So he is 3-4 with me on the text of his speech.

While I'm babbling on about the Obama's speech, which I thought was good, Justice Alito's response to the President disagreeing with the Supreme Court was just incredibly interesting as was James Carville's incredulous response on CNN to the suggestion that the President should not second guess the Supreme Court while they are in the room.

The legal system in general does not fall into step with general principles of economics. Nor should it. Very often, lawmakers try to tip events and end up tipping other points that send the car down the opposite path of the one that was intended.

This is not the reason why malpractice reform is a bad idea. It is a bad idea for the 1,000 reasons I have set forth on this blog and elsewhere. But if you are on the fence on this issue, this is the type of stuff you should keep in mind.

• Obama and Tort Reform
• More on Obama and Tort Reform
• Malpractice Rates (seems to be falling everywhere)

In 2010, people are getting used to the information age. They no longer feel comfortable being left in the dark on issues that are important to them, particularly information a patient would want to know. Do hospitals try to put a big price tag on information to deter patients from obtaining information on their doctors? I'm sure some do. But 10 years from now, covering up this kind of information claiming the search is too time consuming is going to be a dead bang loser. It may even be already.

The Illinois ruling is sexier than Maryland because (1) it is a larger state, and (2) it goes to the core of the cap: is it a violation of the state's constitution. But it is huge deal to medical malpractice victims in Maryland.

Fun random why the Illinois cap is wrong: Rod Blagojevich signed it into law. Ispo facto.

A related overreach many medical malpractice lawyers make when trying to get "the guy" is getting a subspecialist to render a malpractice opinion on generalist. For example, don't hold the general ortho to the world renowned foot and ankle guy. While there is clearly a floor that is the standard of care, jurors are going to be hesitant to hold every doctor to the standard of "the guy" in a subspecialty to a doctor who has a more general practice.

The Plaintiff's malpractice lawyer's angle in this case is interesting. Plaintiff claims that when Missouri imposed its new cap on malpractice pain and suffering damages, it repealed the old law. Therefore, cases arising under the old cap no longer have a cap and the court should award the boy's family the full $6.8 million.

This is a tough argument. In Maryland, there is a far more cogent argument that the legislature repeal the cap in cases where arbitration is waived in Semsker v. Lockshin, a case the Maryland Court of Appeals is considering now.

The logic of this completely escapes me. Does this doctor believe that it is ethically wrong for a lawyer to handle a medical malpractice case? I'm a lawyer. Some lawyers focus their practice exclusively on legal malpractice cases. It would never even occur to me to have ill feelings towards a legal malpractice lawyer.